IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF
PENNSYLVANIAAMERICAN CIVIL LIBERTIES UNION, et al.,

v.

JANET RENO, Attorney General of the United States

CIVIL ACTION No. 96-963

AMERICAN LIBRARY ASSOCIATION, INC., et al.,

v.

UNITED STATES DEP'T OF JUSTICE,et al.

CIVIL ACTION No. 96-1458

Before: Sloviter, Chief Judge, United States Court of Appeals for the Third
Circuit; Buckwalter and Dalzell, Judges, United States District Court for the
Eastern District of Pennsylvania

June 11, 1996

ADJUDICATION ON MOTIONS FOR PRELIMINARY INJUNCTION

I.

INTRODUCTION

Procedural Background

Before us are motions for a preliminary injunction filed by plaintiffs who
challenge on constitutional grounds provisions of the Communications Decency Act
of 1996 (CDA or "the Act"), which constitutes Title V of the
Telecommunications Act of 1996, signed into law by the President on February 8,
1996.(1) Telecommunications Act of 1996, Pub. L. No. 104-104, § 502, 110
Stat. 56, 133-35. Plaintiffs include various organizations and individuals who,
inter alia, are associated with the computer and/or communications industries,
or who publish or post materials on the Internet, or belong to various citizen
groups. See ACLU Complaint (¶¶ 7-26), ALA First Amended Complaint (¶¶
3, 12-33).

The defendants in these actions are Janet Reno, the Attorney General of the
United States, and the United States Department of Justice. For convenience, we
will refer to these defendants as the Government. Plaintiffs contend that the
two challenged provisions of the CDA that are directed to communications over
the Internet which might be deemed "indecent" or "patently
offensive" for minors, defined as persons under the age of eighteen,
infringe upon rights protected by the First Amendment and the Due Process Clause
of the Fifth Amendment.

Plaintiffs in Civil Action Number 96-963, in which the lead plaintiff is the
American Civil Liberties Union (the ACLU),(2) filed their action in the United
States District Court for the Eastern District of Pennsylvania on the day the
Act was signed, and moved for a temporary restraining order to enjoin
enforcement of these two provisions of the CDA. On February 15, 1996, following
an evidentiary hearing, Judge Ronald L. Buckwalter, to whom the case had been
assigned, granted a limited temporary restraining order, finding in a Memorandum
that 47 U.S.C. § 223(a)(1)(B) ("the indecency provision" of the
CDA) was unconstitutionally vague. On the same day, Chief Judge Dolores K.
Sloviter, Chief Judge of the United States Court of Appeals for the Third
Circuit, having been requested by the parties and the district court to convene
a three-judge court, pursuant to § 561(a) of the CDA, appointed such a
court consisting of, in addition to Judge Buckwalter, Judge Stewart Dalzell of
the same district, and herself, as the circuit judge required by 28 U.S.C. §
2284.

After a conference with the court, the parties entered into a stipulation,
which the court approved on February 26, 1996, wherein the Attorney General
agreed that:

she will not initiate any investigations or prosecutions for violations of
47 U.S.C. § 223(d) for conduct occurring after enactment of this provision
until the three-judge court hears Plaintiffs' Motion for Preliminary Injunction
. . . and has decided the motion.

The Attorney General's commitment was qualified to the extent that:

her full authority to investigate or prosecute any violation of §
223(a)(1)(B), as amended, and § 223(d) as to conduct which occurs or
occurred during any period of time after enactment of these provisions
(including for the period of time to which this stipulation applies) should the
Court deny plaintiffs' motion or, if the motion is granted, should these
provisions ultimately be upheld.

Stipulation, ¶ 4, in C.A. No. 96-963.

Shortly thereafter, the American Library Association, Inc. (the ALA) and
others(3) filed a similar action at C.A. No. 96-1458. On February 27, 1996,
Chief Judge Sloviter, again pursuant to § 561(a) of the CDA and upon
request, convened the same three-judge court pursuant to 28 U.S.C. § 2284.
The actions were consolidated pursuant to Fed. R. Civ. P. 42(a), "for all
matters relating to the disposition of motions for preliminary injunction in
these cases, including the hearing on such motions."

The parties were afforded expedited discovery in connection with the motions
for preliminary injunction, and they cooperated with Judge Dalzell, who had been
assigned the case management aspects of the litigation. While the discovery was
proceeding, and with the agreement of the parties, the court began receiving
evidence at the consolidated hearings which were conducted on March 21 and 22,
and April 1, 12 and 15, 1996. In order to expedite the proceedings, the parties
worked closely with Judge Dalzell and arranged to stipulate to many of the
underlying facts and to place much of their cases in chief before the court by
sworn declarations, so that the hearings were largely devoted to
cross-examination of certain of the witnesses whose declarations had been filed.
The parties submitted proposed findings of fact and post-hearing memoranda on
April 29, and the court heard extensive oral argument on May 10, 1996.(4)

Statutory Provisions at Issue

Plaintiffs focus their challenge on two provisions of section 502 of the CDA
which amend 47 U.S.C. §§ 223(a) and 223(d).

Section 223(a)(1)(B) provides in part that any person in interstate or
foreign communications who, "by means of a telecommunications device,"(5)
"knowingly . . . makes, creates, or solicits" and "initiates the
transmission" of "any comment, request, suggestion, proposal, image or
other communication which is obscene or indecent, knowing that the recipient of
the communication is under 18 years of age," "shall be criminally
fined or imprisoned." (emphasis added).

Section 223(d)(1) ("the patently offensive provision"), makes it a
crime to use an "interactive computer service"(6) to "send"
or "display in a manner available" to a person under age 18, "any
comment, request, suggestion, proposal, image, or other communication that, in
context, depicts or describes, in terms patently offensive as measured by
contemporary community standards, sexual or excretory activities or organs,
regardless of whether the user of such service placed the call or initiated the
communication."

Plaintiffs also challenge on the same grounds the provisions in §
223(a)(2) and § 223(d)(2), which make it a crime for anyone to "knowingly
permit[] any telecommunications facility under [his or her] control to be used
for any activity prohibited" in §§ 223(a)(1)(B) and 223(d)(1).
The challenged provisions impose a punishment of a fine, up to two years
imprisonment, or both for each offense.

Plaintiffs make clear that they do not quarrel with the statute to the
extent that it covers obscenity or child pornography, which were already
proscribed before the CDA's adoption. See 18 U.S.C. §§ 1464-65
(criminalizing obscene material); id. §§ 2251-52 (criminalizing child
pornography); see also New York v. Ferber, 458 U.S. 747 (1982); Miller v.
California, 413 U.S. 15 (1973).

Plaintiffs in the ACLU action also challenge the provision of the CDA that
criminalizes speech over the Internet that transmits information about abortions
or abortifacient drugs and devices, through its amendment of 18 U.S.C. §
1462(c). That section now prohibits the sending and receiving of information
over the Internet by any means regarding "where, how, or of whom, or by
what means any [drug, medicine, article, or thing designed, adapted, or intended
for producing abortion] may be obtained or made". The Government has
stated that it does not contest plaintiffs' challenge to the enforceability of
the provision of the CDA as it relates to 18 U.S.C. § 1462(c).(7)

As part of its argument that the CDA passes constitutional muster, the
Government cites the CDA's "safe harbor" defenses in new § 223(e)
of 47 U.S.C., which provides:

(e) Defenses

In addition to any other defenses available by law:

(1) No person shall be held to have violated subsection (a) or (d) of this
section solely for providing access or connection to or from a facility, system,
or network not under that person's control, including transmission, downloading,
intermediate storage, access software, or other related capabilities that are
incidental to providing such access or connection that does not include the
creation of the content of the communication.

(2) The defenses provided by paragraph (1) of this subsection shall not be
applicable to a person who is a conspirator with an entity actively involved in
the creation or knowing distribution of communications that violate this
section, or who knowingly advertises the availability of such communications.

(3) The defenses provided in paragraph (1) of this subsection shall not be
applicable to a person who provides access or connection to a facility, system,
or network engaged in the violation of this section that is owned or controlled
by such person.

(4) No employer shall be held liable under this section for the actions of
an employee or agent unless the employee's or agent's conduct is within the
scope of his or her employment or agency and the employer (A) having knowledge
of such conduct, authorizes or ratifies such conduct, or (B) recklessly
disregards such conduct.

(5) It is a defense to a prosecution under subsection (a)(1)(B) or (d) of
this section, or under subsection (a)(2) of this section with respect to the use
of a facility for an activity under subsection (a)(1)(B) that a person --

(A) has taken, in good faith, reasonable, effective, and appropriate actions
under the circumstances to restrict or prevent access by minors to a
communication specified in such subsections, which may involve any appropriate
measures to restrict minors from such communications, including any method which
is feasible under available technology; or

(B) has restricted access to such communication by requiring use of a
verified credit card, debit account, adult access code, or adult personal
identification number.

(6) The [Federal Communications] Commission may describe measures which are
reasonable, effective, and appropriate to restrict access to prohibited
communications under subsection (d) of this section. Nothing in this section
authorizes the Commission to enforce, or is intended to provide the Commission
with the authority to approve, sanction, or permit, the use of such measures.
The Commission shall have no enforcement authority over the failure to utilize
such measures. . . .

II.

FINDINGS OF FACT

All parties agree that in order to apprehend the legal questions at issue in
these cases, it is necessary to have a clear understanding of the exponentially
growing, worldwide medium that is the Internet, which presents unique issues
relating to the application of First Amendment jurisprudence and due process
requirements to this new and evolving method of communication. For this reason
all parties insisted on having extensive evidentiary hearings before the
three-judge court. The court's Findings of fact are made pursuant to Fed. R.
Civ. P. 52(a). The history and basic technology of this medium are not in
dispute, and the first forty-eight paragraphs of the following Findings of fact
are derived from the like-numbered paragraphs of a stipulation(8) the parties
filed with the court.(9)

The Nature of Cyberspace

The Creation of the Internet and the Development of Cyberspace

The Internet is not a physical or tangible entity, but rather a giant
network which interconnects innumerable smaller groups of linked computer
networks. It is thus a network of networks. This is best understood if one
considers what a linked group of computers -- referred to here as a "network"
-- is, and what it does. Small networks are now ubiquitous (and are often
called "local area networks"). For example, in many United States
Courthouses, computers are linked to each other for the purpose of exchanging
files and messages (and to share equipment such as printers). These are
networks.

Some networks are "closed" networks, not linked to other
computers or networks. Many networks, however, are connected to other networks,
which are in turn connected to other networks in a manner which permits each
computer in any network to communicate with computers on any other network in
the system. This global Web of linked networks and computers is referred to as
the Internet.

The nature of the Internet is such that it is very difficult, if not
impossible, to determine its size at a given moment. It is indisputable,
however, that the Internet has experienced extraordinary growth in recent years.
In 1981, fewer than 300 computers were linked to the Internet, and by 1989, the
number stood at fewer than 90,000 computers. By 1993, over 1,000,000 computers
were linked. Today, over 9,400,000 host computers worldwide, of which
approximately 60 percent located within the United States, are estimated to be
linked to the Internet. This count does not include the personal computers
people use to access the Internet using modems. In all, reasonable estimates
are that as many as 40 million people around the world can and do access the
enormously flexible communication Internet medium. That figure is expected to
grow to 200 million Internet users by the year 1999.

Some of the computers and computer networks that make up the Internet are
owned by governmental and public institutions, some are owned by non-profit
organizations, and some are privately owned. The resulting whole is a
decentralized, global medium of communications -- or "cyberspace" --
that links people, institutions, corporations, and governments around the world.
The Internet is an international system. This communications medium allows any
of the literally tens of millions of people with access to the Internet to
exchange information. These communications can occur almost instantaneously,
and can be directed either to specific individuals, to a broader group of people
interested in a particular subject, or to the world as a whole.

The Internet had its origins in 1969 as an experimental project of the
Advanced Research Project Agency ("ARPA"), and was called ARPANET.
This network linked computers and computer networks owned by the military,
defense contractors, and university laboratories conducting defense-related
research. The network later allowed researchers across the country to access
directly and to use extremely powerful supercomputers located at a few key
universities and laboratories. As it evolved far beyond its research origins in
the United States to encompass universities, corporations, and people around the
world, the ARPANET came to be called the "DARPA Internet," and finally
just the "Internet."

From its inception, the network was designed to be a decentralized,
self-maintaining series of redundant links between computers and computer
networks, capable of rapidly transmitting communications without direct human
involvement or control, and with the automatic ability to re-route
communications if one or more individual links were damaged or otherwise
unavailable. Among other goals, this redundant system of linked computers was
designed to allow vital research and communications to continue even if portions
of the network were damaged, say, in a war.

To achieve this resilient nationwide (and ultimately global)
communications medium, the ARPANET encouraged the creation of multiple links to
and from each computer (or computer network) on the network. Thus, a computer
located in Washington, D.C., might be linked (usually using dedicated telephone
lines) to other computers in neighboring states or on the Eastern seaboard.
Each of those computers could in turn be linked to other computers, which
themselves would be linked to other computers.

A communication sent over this redundant series of linked computers could
travel any of a number of routes to its destination. Thus, a message sent from
a computer in Washington, D.C., to a computer in Palo Alto, California, might
first be sent to a computer in Philadelphia, and then be forwarded to a computer
in Pittsburgh, and then to Chicago, Denver, and Salt Lake City, before finally
reaching Palo Alto. If the message could not travel along that path (because of
military attack, simple technical malfunction, or other reason), the message
would automatically (without human intervention or even knowledge) be re-routed,
perhaps, from Washington, D.C. to Richmond, and then to Atlanta, New Orleans,
Dallas, Albuquerque, Los Angeles, and finally to Palo Alto. This type of
transmission, and re-routing, would likely occur in a matter of seconds.

Messages between computers on the Internet do not necessarily travel
entirely along the same path. The Internet uses "packet switching"
communication protocols that allow individual messages to be subdivided into
smaller "packets" that are then sent independently to the destination,
and are then automatically reassembled by the receiving computer. While all
packets of a given message often travel along the same path to the destination,
if computers along the route become overloaded, then packets can be re-routed to
less loaded computers.

At the same time that ARPANET was maturing (it subsequently ceased to
exist), similar networks developed to link universities, research facilities,
businesses, and individuals around the world. These other formal or loose
networks included BITNET, CSNET, FIDONET, and USENET. Eventually, each of these
networks (many of which overlapped) were themselves linked together, allowing
users of any computers linked to any one of the networks to transmit
communications to users of computers on other networks. It is this series of
linked networks (themselves linking computers and computer networks) that is
today commonly known as the Internet.

No single entity -- academic, corporate, governmental, or non-profit --
administers the Internet. It exists and functions as a result of the fact that
hundreds of thousands of separate operators of computers and computer networks
independently decided to use common data transfer protocols to exchange
communications and information with other computers (which in turn exchange
communications and information with still other computers). There is no
centralized storage location, control point, or communications channel for the
Internet, and it would not be technically feasible for a single entity to
control all of the information conveyed on the Internet.

How Individuals Access the Internet

12. Individuals have a wide variety of avenues to access cyberspace in
general, and the Internet in particular. In terms of physical access, there are
two common methods to establish an actual link to the Internet. First, one can
use a computer or computer terminal that is directly (and usually permanently)
connected to a computer network that is itself directly or indirectly connected
to the Internet. Second, one can use a "personal computer" with a "modem"
to connect over a telephone line to a larger computer or computer network that
is itself directly or indirectly connected to the Internet. As detailed below,
both direct and modem connections are made available to people by a wide variety
of academic, governmental, or commercial entities.

13. Students, faculty, researchers, and others affiliated with the vast
majority of colleges and universities in the United States can access the
Internet through their educational institutions. Such access is often via
direct connection using computers located in campus libraries, offices, or
computer centers, or may be through telephone access using a modem from a
student's or professor's campus or off-campus location. Some colleges and
universities install "ports" or outlets for direct network connections
in each dormitory room or provide access via computers located in common areas
in dormitories. Such access enables students and professors to use information
and content provided by the college or university itself, and to use the vast
amount of research resources and other information available on the Internet
worldwide.

14. Similarly, Internet resources and access are sufficiently important to
many corporations and other employers that those employers link their office
computer networks to the Internet and provide employees with direct or modem
access to the office network (and thus to the Internet). Such access might be
used by, for example, a corporation involved in scientific or medical research
or manufacturing to enable corporate employees to exchange information and ideas
with academic researchers in their fields.

15. Those who lack access to the Internet through their schools or
employers still have a variety of ways they can access the Internet. Many
communities across the country have established "free-nets" or
community networks to provide their citizens with a local link to the Internet
(and to provide local-oriented content and discussion groups). The first such
community network, the Cleveland Free-Net Community Computer System, was
established in 1986, and free-nets now exist in scores of communities as diverse
as Richmond, Virginia, Tallahassee, Florida, Seattle, Washington, and San Diego,
California. Individuals typically can access free-nets at little or no cost via
modem connection or by using computers available in community buildings.
Free-nets are often operated by a local library, educational institution, or
non-profit community group.

16. Individuals can also access the Internet through many local libraries.
Libraries often offer patrons use of computers that are linked to the Internet.
In addition, some libraries offer telephone modem access to the libraries'
computers, which are themselves connected to the Internet. Increasingly,
patrons now use library services and resources without ever physically entering
the library itself. Libraries typically provide such direct or modem access at
no cost to the individual user.

17. Individuals can also access the Internet by patronizing an increasing
number of storefront "computer coffee shops," where customers -- while
they drink their coffee -- can use computers provided by the shop to access the
Internet. Such Internet access is typically provided by the shop for a small
hourly fee.

18. Individuals can also access the Internet through commercial and
non-commercial "Internet service providers" that typically offer modem
telephone access to a computer or computer network linked to the Internet. Many
such providers -- including the members of plaintiff Commercial Internet
Exchange Association -- are commercial entities offering Internet access for a
monthly or hourly fee. Some Internet service providers, however, are non-profit
organizations that offer free or very low cost access to the Internet. For
example, the International Internet Association offers free modem access to the
Internet upon request. Also, a number of trade or other non-profit associations
offer Internet access as a service to members.

19. Another common way for individuals to access the Internet is through
one of the major national commercial "online services" such as America
Online, CompuServe, the Microsoft Network, or Prodigy. These online services
offer nationwide computer networks (so that subscribers can dial-in to a local
telephone number), and the services provide extensive and well organized content
within their own proprietary computer networks. In addition to allowing access
to the extensive content available within each online service, the services also
allow subscribers to link to the much larger resources of the Internet. Full
access to the online service (including access to the Internet) can be obtained
for modest monthly or hourly fees. The major commercial online services have
almost twelve million individual subscribers across the United States.

20. In addition to using the national commercial online services,
individuals can also access the Internet using some (but not all) of the
thousands of local dial-in computer services, often called "bulletin board
systems" or "BBSs." With an investment of as little as $2,000.00
and the cost of a telephone line, individuals, non-profit organizations,
advocacy groups, and businesses can offer their own dial-in computer "bulletin
board" service where friends, members, subscribers, or customers can
exchange ideas and information. BBSs range from single computers with only one
telephone line into the computer (allowing only one user at a time), to single
computers with many telephone lines into the computer (allowing multiple
simultaneous users), to multiple linked computers each servicing multiple
dial-in telephone lines (allowing multiple simultaneous users). Some (but not
all) of these BBS systems offer direct or indirect links to the Internet. Some
BBS systems charge users a nominal fee for access, while many others are free to
the individual users.

21. Although commercial access to the Internet is growing rapidly, many
users of the Internet -- such as college students and staff -- do not
individually pay for access (except to the extent, for example, that the cost of
computer services is a component of college tuition). These and other Internet
users can access the Internet without paying for such access with a credit card
or other form of payment.

Methods to Communicate Over the Internet

22. Once one has access to the Internet, there are a wide variety of
different methods of communication and information exchange over the network.
These many methods of communication and information retrieval are constantly
evolving and are therefore difficult to categorize concisely. The most common
methods of communications on the Internet (as well as within the major online
services) can be roughly grouped into six categories:

Most of these methods of communication can be used to transmit text, data,
computer programs, sound, visual images (i.e., pictures), and moving video
images.

23. One-to-one messaging. One method of communication on the Internet is
via electronic mail, or "e-mail," comparable in principle to sending a
first class letter. One can address and transmit a message to one or more other
people. E-mail on the Internet is not routed through a central control point,
and can take many and varying paths to the recipients. Unlike postal mail,
simple e-mail generally is not "sealed" or secure, and can be accessed
or viewed on intermediate computers between the sender and recipient (unless the
message is encrypted).

24. One-to-many messaging. The Internet also contains automatic mailing
list services (such as "listservs"), [also referred to by witnesses as
"mail exploders"] that allow communications about particular subjects
of interest to a group of people. For example, people can subscribe to a "listserv"
mailing list on a particular topic of interest to them. The subscriber can
submit messages on the topic to the listserv that are forwarded (via e-mail),
either automatically or through a human moderator overseeing the listserv, to
anyone who has subscribed to the mailing list. A recipient of such a message
can reply to the message and have the reply also distributed to everyone on the
mailing list. This service provides the capability to keep abreast of
developments or events in a particular subject area. Most listserv-type mailing
lists automatically forward all incoming messages to all mailing list
subscribers. There are thousands of such mailing list services on the Internet,
collectively with hundreds of thousands of subscribers. Users of "open"
listservs typically can add or remove their names from the mailing list
automatically, with no direct human involvement. Listservs may also be "closed,"
i.e., only allowing for one's acceptance into the listserv by a human moderator.

25. Distributed message databases. Similar in function to listservs -- but
quite different in how communications are transmitted -- are distributed message
databases such as "USENET newsgroups." User-sponsored newsgroups are
among the most popular and widespread applications of Internet services, and
cover all imaginable topics of interest to users. Like listservs, newsgroups
are open discussions and exchanges on particular topics. Users, however, need
not subscribe to the discussion mailing list in advance, but can instead access
the database at any time. Some USENET newsgroups are "moderated" but
most are open access. For the moderated newsgroups,(10) all messages to the
newsgroup are forwarded to one person who can screen them for relevance to the
topics under discussion. USENET newsgroups are disseminated using ad hoc, peer
to peer connections between approximately 200,000 computers (called USENET "servers")
around the world. For unmoderated newsgroups, when an individual user with
access to a USENET server posts a message to a newsgroup, the message is
automatically forwarded to all adjacent USENET servers that furnish access to
the newsgroup, and it is then propagated to the servers adjacent to those
servers, etc. The messages are temporarily stored on each receiving server,
where they are available for review and response by individual users. The
messages are automatically and periodically purged from each system after a time
to make room for new messages. Responses to messages, like the original
messages, are automatically distributed to all other computers receiving the
newsgroup or forwarded to a moderator in the case of a moderated newsgroup. The
dissemination of messages to USENET servers around the world is an automated
process that does not require direct human intervention or review.

26. There are newsgroups on more than fifteen thousand different subjects.
In 1994, approximately 70,000 messages were posted to newsgroups each day, and
those messages were distributed to the approximately 190,000 computers or
computer networks that participate in the USENET newsgroup system. Once the
messages reach the approximately 190,000 receiving computers or computer
networks, they are available to individual users of those computers or computer
networks. Collectively, almost 100,000 new messages (or "articles")
are posted to newsgroups each day.

27. Real time communication. In addition to transmitting messages that can
be later read or accessed, individuals on the Internet can engage in an
immediate dialog, in "real time", with other people on the Internet.
In its simplest forms, "talk" allows one-to-one communications and "Internet
Relay Chat" (or IRC) allows two or more to type messages to each other that
almost immediately appear on the others' computer screens. IRC is analogous to
a telephone party line, using a computer and keyboard rather than a telephone.
With IRC, however, at any one time there are thousands of different party lines
available, in which collectively tens of thousands of users are engaging in
conversations on a huge range of subjects. Moreover, one can create a new party
line to discuss a different topic at any time. Some IRC conversations are "moderated"
or include "channel operators."

28. In addition, commercial online services such as America Online,
CompuServe, the Microsoft Network, and Prodigy have their own "chat"
systems allowing their members to converse.

29. Real time remote computer utilization. Another method to use
information on the Internet is to access and control remote computers in "real
time" using "telnet." For example, using telnet, a researcher at
a university would be able to use the computing power of a supercomputer located
at a different university. A student can use telnet to connect to a remote
library to access the library's online card catalog program.

30. Remote information retrieval. The final major category of
communication may be the most well known use of the Internet -- the search for
and retrieval of information located on remote computers. There are three
primary methods to locate and retrieve information on the Internet.

31. A simple method uses "ftp" (or file transfer protocol) to list
the names of computer files available on a remote computer, and to transfer one
or more of those files to an individual's local computer.

32. Another approach uses a program and format named "gopher" to
guide an individual's search through the resources available on a remote
computer.

The World Wide Web

33. A third approach, and fast becoming the most well-known on the Internet,
is the "World Wide Web." The Web utilizes a "hypertext"
formatting language called hypertext markup language (HTML), and programs that "browse"
the Web can display HTML documents containing text, images, sound, animation and
moving video. Any HTML document can include links to other types of information
or resources, so that while viewing an HTML document that, for example,
describes resources available on the Internet, one can "click" using a
computer mouse on the description of the resource and be immediately connected
to the resource itself. Such "hyperlinks" allow information to be
accessed and organized in very flexible ways, and allow people to locate and
efficiently view related information even if the information is stored on
numerous computers all around the world.

34. Purpose. The World Wide Web (W3C) was created to serve as the platform
for a global, online store of knowledge, containing information from a diversity
of sources and accessible to Internet users around the world. Though
information on the Web is contained in individual computers, the fact that each
of these computers is connected to the Internet through W3C protocols allows all
of the information to become part of a single body of knowledge. It is
currently the most advanced information system developed on the Internet, and
embraces within its data model most information in previous networked
information systems such as ftp, gopher, wais, and Usenet.

35. History. W3C was originally developed at CERN, the European Particle
Physics Laboratory, and was initially used to allow information sharing within
internationally dispersed teams of researchers and engineers. Originally aimed
at the High Energy Physics community, it has spread to other areas and attracted
much interest in user support, resource recovery, and many other areas which
depend on collaborative and information sharing. The Web has extended beyond
the scientific and academic community to include communications by individuals,
non-profit organizations, and businesses.

36. Basic Operation. The World Wide Web is a series of documents stored in
different computers all over the Internet. Documents contain information stored
in a variety of formats, including text, still images, sounds, and video. An
essential element of the Web is that any document has an address (rather like a
telephone number). Most Web documents contain "links." These are
short sections of text or image which refer to another document. Typically the
linked text is blue or underlined when displayed, and when selected by the user,
the referenced document is automatically displayed, wherever in the world it
actually is stored. Links for example are used to lead from overview documents
to more detailed documents, from tables of contents to particular pages, but
also as cross-references, footnotes, and new forms of information structure.

37. Many organizations now have "home pages" on the Web. These
are documents which provide a set of links designed to represent the
organization, and through links from the home page, guide the user directly or
indirectly to information about or relevant to that organization.

38. As an example of the use of links, if these Findings were to be put on a
World Wide Web site, its home page might contain links such as those:

THE NATURE OF CYBERSPACE

CREATION OF THE INTERNET AND THE DEVELOPMENT OF CYBERSPACE

HOW PEOPLE ACCESS THE INTERNET

METHODS TO COMMUNICATE OVER THE INTERNET

39. Each of these links takes the user of the site from the beginning of the
Findings to the appropriate section within this Adjudication. Links may also
take the user from the original Web site to another Web site on another computer
connected to the Internet. These links from one computer to another, from one
document to another across the Internet, are what unify the Web into a single
body of knowledge, and what makes the Web unique. The Web was designed with a
maximum target time to follow a link of one tenth of a second.

40. Publishing. The World Wide Web exists fundamentally as a platform
through which people and organizations can communicate through shared
information. When information is made available, it is said to be "published"
on the Web. Publishing on the Web simply requires that the "publisher"
has a computer connected to the Internet and that the computer is running W3C
server software. The computer can be as simple as a small personal computer
costing less than $1500 dollars or as complex as a multi-million dollar
mainframe computer. Many Web publishers choose instead to lease disk storage
space from someone else who has the necessary computer facilities, eliminating
the need for actually owning any equipment oneself.

41. The Web, as a universe of network accessible information, contains a
variety of documents prepared with quite varying degrees of care, from the
hastily typed idea, to the professionally executed corporate profile. The power
of the Web stems from the ability of a link to point to any document, regardless
of its status or physical location.

42. Information to be published on the Web must also be formatted according
to the rules of the Web standards. These standardized formats assure that all
Web users who want to read the material will be able to view it. Web standards
are sophisticated and flexible enough that they have grown to meet the
publishing needs of many large corporations, banks, brokerage houses, newspapers
and magazines which now publish "online" editions of their material,
as well as government agencies, and even courts, which use the Web to
disseminate information to the public. At the same time, Web publishing is
simple enough that thousands of individual users and small community
organizations are using the Web to publish their own personal "home pages,"
the equivalent of individualized newsletters about that person or organization,
which are available to everyone on the Web.

43. Web publishers have a choice to make their Web sites open to the general
pool of all Internet users, or close them, thus making the information
accessible only to those with advance authorization. Many publishers choose to
keep their sites open to all in order to give their information the widest
potential audience. In the event that the publishers choose to maintain
restrictions on access, this may be accomplished by assigning specific user
names and passwords as a prerequisite to access to the site. Or, in the case of
Web sites maintained for internal use of one organization, access will only be
allowed from other computers within that organization's local network.(11)

44. Searching the Web. A variety of systems have developed that allow users
of the Web to search particular information among all of the public sites that
are part of the Web. Services such as Yahoo, Magellan, Altavista, Webcrawler,
and Lycos are all services known as "search engines" which allow users
to search for Web sites that contain certain categories of information, or to
search for key words. For example, a Web user looking for the text of Supreme
Court opinions would type the words "Supreme Court" into a search
engine, and then be presented with a list of World Wide Web sites that contain
Supreme Court information. This list would actually be a series of links to
those sites. Having searched out a number of sites that might contain the
desired information, the user would then follow individual links, browsing
through the information on each site, until the desired material is found. For
many content providers on the Web, the ability to be found by these search
engines is very important.

45. Common standards. The Web links together disparate information on an
ever-growing number of Internet-linked computers by setting common information
storage formats (HTML) and a common language for the exchange of Web documents
(HTTP). Although the information itself may be in many different formats, and
stored on computers which are not otherwise compatible, the basic Web standards
provide a basic set of standards which allow communication and exchange of
information. Despite the fact that many types of computers are used on the Web,
and the fact that many of these machines are otherwise incompatible, those who "publish"
information on the Web are able to communicate with those who seek to access
information with little difficulty because of these basic technical standards.

46. A distributed system with no centralized control. Running on tens of
thousands of individual computers on the Internet, the Web is what is known as a
distributed system. The Web was designed so that organizations with computers
containing information can become part of the Web simply by attaching their
computers to the Internet and running appropriate World Wide Web software. No
single organization controls any membership in the Web, nor is there any single
centralized point from which individual Web sites or services can be blocked
from the Web. From a user's perspective, it may appear to be a single,
integrated system, but in reality it has no centralized control point.

47. Contrast to closed databases. The Web's open, distributed,
decentralized nature stands in sharp contrast to most information systems that
have come before it. Private information services such as Westlaw, Lexis/Nexis,
and Dialog, have contained large storehouses of knowledge, and can be accessed
from the Internet with the appropriate passwords and access software. However,
these databases are not linked together into a single whole, as is the World
Wide Web.

48. Success of the Web in research, education, and political activities.
The World Wide Web has become so popular because of its open, distributed, and
easy-to-use nature. Rather than requiring those who seek information to
purchase new software or hardware, and to learn a new kind of system for each
new database of information they seek to access, the Web environment makes it
easy for users to jump from one set of information to another. By the same
token, the open nature of the Web makes it easy for publishers to reach their
intended audiences without having to know in advance what kind of computer each
potential reader has, and what kind of software they will be using.

Restricting Access to Unwanted On-Line Material(12)

PICS

49. With the rapid growth of the Internet, the increasing popularity of the
Web, and the existence of material online that some parents may consider
inappropriate for their children, various entities have begun to build systems
intended to enable parents to control the material which comes into their homes
and may be accessible to their children. The World Wide Web Consortium launched
the PICS ("Platform for Internet Content Selection") program in order
to develop technical standards that would support parents' ability to filter and
screen material that their children see on the Web.

50. The Consortium intends that PICS will provide the ability for third
parties, as well as individual content providers, to rate content on the
Internet in a variety of ways. When fully implemented, PICS-compatible World
Wide Web browsers, Usenet News Group readers, and other Internet applications,
will provide parents the ability to choose from a variety of rating services, or
a combination of services.

51. PICS working group [PICS-WG] participants include many of the major
online services providers, commercial internet access providers, hardware and
software companies, major internet content providers, and consumer
organizations. Among active participants in the PICS effort are:

52. Membership in the PICS-WG includes a broad cross-section of companies
from the computer, communications, and content industries, as well as trade
associations and public interest groups. PICS technical specifications have
been agreed to, allowing the Internet community to begin to deploy products and
services based on the PICS-standards.

53. Until a majority of sites on the Internet have been rated by a PICS
rating service, PICS will initially function as a "positive" ratings
system in which only those sites that have been rated will be displayed using
PICS compatible software. In other words, PICS will initially function as a
site inclusion list rather than a site exclusion list. The default
configuration for a PICS compatible Internet application will be to block access
to all sites which have not been rated by a PICS rating service, while allowing
access to sites which have a PICS rating for appropriate content.(14)

Software

54. For over a year, various companies have marketed stand alone software
that is intended to enable parents and other adults to limit the Internet access
of children. Examples of such software include: Cyber Patrol, CYBERsitter, The
Internet Filter, Net Nanny, Parental Guidance, SurfWatch, Netscape Proxy Server,
and WebTrack. The market for this type of software is growing, and there is
increasing competition among software providers to provide products.

Cyber Patrol

55. As more people, particularly children, began to use the Internet,
Microsystems Software, Inc. decided to develop and market Internet software
intended to empower parents to exercise individual choice over what material
their children could access. Microsystems' stated intent is to develop a
product which would give parents comfort that their children can reap the
benefits of the Internet while shielding them from objectionable or otherwise
inappropriate materials based on the parents' own particular tastes and values.
Microsystems' product, Cyber Patrol, was developed to address this need.

56. Cyber Patrol was first introduced in August 1995, and is currently
available in Windows and Macintosh versions. Cyber Patrol works with both
direct Internet Access providers (ISPs, e.g., Netcom, PSI, UUnet), and
Commercial Online Service Providers (e.g., America Online, Compuserv, Prodigy,
Microsoft). Cyber Patrol is also compatible with all major World Wide Web
browsers on the market (e.g., Netscape, Navigator, Mosaic, Prodigy's Legacy and
Skimmer browsers, America Online, Netcom's NetCruiser, etc.). Cyber Patrol was
the first parental empowerment application to be compatible with the PICS
standard. In February of 1996, Microsystems put the first PICS ratings server
on the Internet.

57. The CyberNOT list contains approximately 7000 sites in twelve
categories. The software is designed to enable parents to selectively block
access to any or all of the twelve CyberNOT categories simply by checking boxes
in the Cyber Patrol Headquarters (the Cyber Patrol program manager). These
categories are:

Violence/Profanity: Extreme cruelty, physical or emotional acts against any
animal or person which are primarily intended to hurt or inflict pain. Obscene
words, phrases, and profanity defined as text that uses George Carlin's seven
censored words more often than once every fifty messages or pages.

Partial Nudity: Full or partial exposure of the human anatomy except when
exposing genitalia.

Gross Depictions (graphic or text): Pictures or descriptive text of anyone
or anything which are crudely vulgar, deficient in civility or behavior, or
showing scatological impropriety. Includes such depictions as maiming, bloody
figures, indecent depiction of bodily functions.

Racism/Ethnic Impropriety: Prejudice or discrimination against any race or
ethnic culture. Ethnic or racist jokes and slurs. Any text that elevates one
race over another.

Satanic/Cult: Worship of the devil; affinity for evil, wickedness. Sects
or groups that potentially coerce individuals to grow, and keep, membership.

Drugs/Drug Culture: Topics dealing with the use of illegal drugs for
entertainment. This would exclude current illegal drugs used for medicinal
purposes (e.g., drugs used to treat victims of AIDS). Includes substances used
for other than their primary purpose to alter the individual's state of mind
such as glue sniffing.

Militant/Extremist: Extremely aggressive and combative behaviors,
radicalism, advocacy of extreme political measures. Topics include extreme
political groups that advocate violence as a means to achieve their goal.

Questionable/Illegal: Material or activities of a dubious nature which may
be illegal in any or all jurisdictions, such as illegal business schemes, chain
letters, software piracy, and copyright infringement.

Alcohol, Beer & Wine: Material pertaining to the sale or consumption of
alcoholic beverages. Also includes sites and information relating to tobacco
products.

58. Microsystems employs people to search the Internet for sites containing
material in these categories. Since new sites are constantly coming online,
Microsystems updates the CyberNOT list on a weekly basis. Once installed on the
home PC, the copy of Cyber Patrol receives automatic updates to the CyberNOT
list over the Internet every seven days.

59. In February of 1996, Microsystems signed a licensing arrangement with
CompuServe, one of the leading commercial online services with over 4.3 million
subscribers. CompuServe provides Cyber Patrol free of charge to its
subscribers. Microsystems the same month signed a licensing arrangement with
Prodigy, another leading commercial online service with over 1.4 million
subscribers. Prodigy will provide Cyber Patrol free of charge of its
subscribers.

60. Cyber Patrol is also available directly from Microsystems for $49.95,
which includes a six month subscription to the CyberNOT blocked sites list
(updated automatically once every seven days). After six months, parents can
receive six months of additional updates for $19.95, or twelve months for $29.95.
Cyber Patrol Home Edition, a limited version of Cyber Patrol, is available free
of charge on the Internet. To obtain either version, parents download a seven
day demonstration version of the full Cyber Patrol product from the Microsystems
Internet World Wide Web Server. At the end of the seven day trial period, users
are offered the opportunity to purchase the complete version of Cyber Patrol or
provide Microsystems some basic demographic information in exchange for
unlimited use of the Home Edition. The demographic information is used for
marketing and research purposes. Since January of 1996, over 10,000
demonstration copies of Cyber Patrol have been downloaded from Microsystems' Web
site.

61. Cyber Patrol is also available from Retail outlets as NetBlocker Plus.
NetBlocker Plus sells for $19.95, which includes five weeks of updates to the
CyberNOT list.

62. Microsystems also sells Cyber Patrol into a growing market in schools.
As more classrooms become connected to the Internet, many teachers want to
ensure that their students can receive the benefit of the Internet without
encountering material they deem educationally inappropriate.

63. Microsystems is working with the Recreational Software Advisory Council
(RSAC), a non-profit corporation which developed rating systems for video games,
to implement the RSAC rating system for the Internet.

64. The next release of Cyber Patrol, expected in second quarter of this
year, will give parents the ability to use any PICS rating service, including
the RSAC rating service, in addition to the Microsystems CyberNOT list.

65. In order to speed the implementation of PICS and encourage the
development of PICS-compatible Internet applications, Microsystems maintains a
server on the Internet which contains its CyberNOT list. The server provides
software developers with access to a PICS rating service, and allows software
developers to test their products' ability to interpret standard PICS labels.
Microsystems is also offering its PICS client test program for Windows free of
charge. The client program can be used by developers of PICS rating services to
test their services and products.

SurfWatch

66. Another software product, SurfWatch, is also designed to allow parents
and other concerned users to filter unwanted material on the Internet.
SurfWatch is available for both Apple Macintosh, Microsoft Windows, and
Microsoft Windows 95 Operating Systems, and works with direct Internet Access
Providers (e.g., Netcom, PSI, UUnet, AT&T, and more than 1000 other Internet
Service Providers).

67. The suggested retail price of SurfWatch Software is $49.95, with a
street price of between $20.00 and $25.00. The product is also available as
part of CompuServe/Spry Inc.'s Internet in a Box for Kids, which includes access
to Spry's Kids only Internet service and a copy of SurfWatch. Internet in a Box
for Kids retails for approximately $30.00. The subscription service, which
updates the SurfWatch blocked site list automatically with new sites each month,
is available for $5.95 per month or $60.00 per year. The subscription is
included as part of the Internet in a Box for Kids program, and is also provided
as a low-cost option from Internet Service Providers.

68. SurfWatch is available at over 12,000 retail locations, including
National stores such as Comp USA, Egghead Software, Computer City, and several
national mail order outlets. SurfWatch can also be ordered directly from its
own site on the World Wide Web, and through the Internet Shopping Network.

69. Plaintiffs America Online (AOL), Microsoft Network, and Prodigy all
offer parental control options free of charge to their members. AOL has
established an online area designed specifically for children. The "Kids
Only" parental control feature allows parents to establish an AOL account
for their children that accesses only the Kids Only channel on America
Online.(15)

70. AOL plans to incorporate PICS-compatible capability into its standard
Web browser software, and to make available to subscribers other PICS-compatible
Web browsers, such as the Netscape software.

71. Plaintiffs CompuServe and Prodigy give their subscribers the option of
blocking all access to the Internet, or to particular media within their
proprietary online content, such as bulletin boards and chat rooms.

72. Although parental control software currently can screen for certain
suggestive words or for known sexually explicit sites, it cannot now screen for
sexually explicit images unaccompanied by suggestive text unless those who
configure the software are aware of the particular site.

73. Despite its limitations, currently available user-based software
suggests that a reasonably effective method by which parents can prevent their
children from accessing sexually explicit and other material which parents may
believe is inappropriate for their children will soon be widely available.

Content on the Internet

74. The types of content now on the Internet defy easy classification. The
entire card catalogue of the Carnegie Library is on-line, together with
journals, journal abstracts, popular magazines, and titles of compact discs.
The director of the Carnegie Library, Robert Croneberger, testified that on-line
services are the emerging trend in libraries generally. Plaintiff Hotwired
Ventures LLC organizes its Web site into information regarding travel, news and
commentary, arts and entertainment, politics, and types of drinks. Plaintiff
America Online, Inc., not only creates chat rooms for a broad variety of topics,
but also allows members to create their own chat rooms to suit their own tastes.
The ACLU uses an America Online chat room as an unmoderated forum for people to
debate civil liberties issues. Plaintiffs' expert, Scott Bradner,(16) estimated
that 15,000 newsgroups exist today, and he described his own interest in a
newsgroup devoted solely to Formula 1 racing cars. America Online makes 15,000
bulletin boards available to its subscribers, who post between 200,000 and
250,000 messages each day. Another plaintiffs' expert, Harold Rheingold,
participates in "virtual communities" that simulate social
interaction. It is no exaggeration to conclude that the content on the Internet
is as diverse as human thought.

75. The Internet is not exclusively, or even primarily, a means of
commercial communication. Many commercial entities maintain Web sites to inform
potential consumers about their goods and services, or to solicit purchases, but
many other Web sites exist solely for the dissemination of non-commercial
information. The other forms of Internet communication -- e-mail, bulletin
boards, newsgroups, and chat rooms -- frequently have non-commercial goals. For
the economic and technical reasons set forth in the following paragraphs, the
Internet is an especially attractive means for not-for-profit entities or public
interest groups to reach their desired audiences. There are examples in the
parties' stipulation of some of the non-commercial uses that the Internet
serves. Plaintiff Human Rights Watch, Inc., offers information on its Internet
site regarding reported human rights abuses around the world. Plaintiff
National Writers Union provides a forum for writers on issues of concern to
them. Plaintiff Stop Prisoner Rape, Inc., posts text, graphics, and statistics
regarding the incidence and prevention of rape in prisons. Plaintiff Critical
Path AIDS Project, Inc., offers information on safer sex, the transmission of
HIV, and the treatment of AIDS.

76. Such diversity of content on the Internet is possible because the
Internet provides an easy and inexpensive way for a speaker to reach a large
audience, potentially of millions. The start-up and operating costs entailed by
communication on the Internet are significantly lower than those associated with
use of other forms of mass communication, such as television, radio, newspapers,
and magazines. This enables operation of their own Web sites not only by large
companies, such as Microsoft and Time Warner, but also by small, not-for-profit
groups, such as Stop Prisoner Rape and Critical Path AIDS Project. The
Government's expert, Dr. Dan R. Olsen,(17) agreed that creation of a Web site
would cost between $1,000 and $15,000, with monthly operating costs depending on
one's goals and the Web site's traffic. Commercial online services such as
America Online allow subscribers to create Web pages free of charge. Any
Internet user can communicate by posting a message to one of the thousands of
newsgroups and bulletin boards or by engaging in an on-line "chat",
and thereby reach an audience worldwide that shares an interest in a particular
topic.

77. The ease of communication through the Internet is facilitated by the
use of hypertext markup language (HTML), which allows for the creation of "hyperlinks"
or "links". HTML enables a user to jump from one source to other
related sources by clicking on the link. A link might take the user from Web
site to Web site, or to other files within a particular Web site. Similarly, by
typing a request into a search engine, a user can retrieve many different
sources of content related to the search that the creators of the engine have
collected.

78. Because of the technology underlying the Internet, the statutory term "content
provider,"(18) which is equivalent to the traditional "speaker,"
may actually be a hybrid of speakers. Through the use of HTML, for example,
Critical Path and Stop Prisoner Rape link their Web sites to several related
databases, and a user can immediately jump from the home pages of these
organizations to the related databases simply by clicking on a link. America
Online creates chat rooms for particular discussions but also allows subscribers
to create their own chat rooms. Similarly, a newsgroup gathers postings on a
particular topic and distributes them to the newsgroup's subscribers. Users of
the Carnegie Library can read on-line versions of Vanity Fair and Playboy, and
America Online's subscribers can peruse the New York Times, Boating, and other
periodicals. Critical Path, Stop Prisoner Rape, America Online and the Carnegie
Library all make available content of other speakers over whom they have little
or no editorial control.

79. Because of the different forms of Internet communication, a user of the
Internet may speak or listen interchangeably, blurring the distinction between "speakers"
and "listeners" on the Internet. Chat rooms, e-mail, and newsgroups
are interactive forms of communication, providing the user with the opportunity
both to speak and to listen.

80. It follows that unlike traditional media, the barriers to entry as a
speaker on the Internet do not differ significantly from the barriers to entry
as a listener. Once one has entered cyberspace, one may engage in the dialogue
that occurs there. In the argot of the medium, the receiver can and does become
the content provider, and vice-versa.

81. The Internet is therefore a unique and wholly new medium of worldwide
human communication.

Sexually Explicit Material On the Internet

82. The parties agree that sexually explicit material exists on the
Internet. Such material includes text, pictures, and chat, and includes
bulletin boards, newsgroups, and the other forms of Internet communication, and
extends from the modestly titillating to the hardest-core.

83. There is no evidence that sexually-oriented material is the primary type
of content on this new medium. Purveyors of such material take advantage of the
same ease of access available to all users of the Internet, including
establishment of a Web site.

84. Sexually explicit material is created, named, and posted in the same
manner as material that is not sexually explicit. It is possible that a search
engine can accidentally retrieve material of a sexual nature through an
imprecise search, as demonstrated at the hearing. Imprecise searches may also
retrieve irrelevant material that is not of a sexual nature. The accidental
retrieval of sexually explicit material is one manifestation of the larger
phenomenon of irrelevant search results.

85. Once a provider posts content on the Internet, it is available to all
other Internet users worldwide. Similarly, once a user posts a message to a
newsgroup or bulletin board, that message becomes available to all subscribers
to that newsgroup or bulletin board. For example, when the UCR/California
Museum of Photography posts to its Web site nudes by Edward Weston and Robert
Mapplethorpe to announce that its new exhibit will travel to Baltimore and New
York City, those images are available not only in Los Angeles, Baltimore, and
New York City, but also in Cincinnati, Mobile, or Beijing -- wherever Internet
users live. Similarly, the safer sex instructions that Critical Path posts to
its Web site, written in street language so that the teenage receiver can
understand them, are available not just in Philadelphia, but also in Provo and
Prague. A chat room organized by the ACLU to discuss the United States Supreme
Court's decision in FCC v. Pacifica Foundation would transmit George Carlin's
seven dirty words to anyone who enters. Messages posted to a newsgroup
dedicated to the Oklahoma City bombing travel to all subscribers to that
newsgroup.

86. Once a provider posts its content on the Internet, it cannot prevent
that content from entering any community. Unlike the newspaper, broadcast
station, or cable system, Internet technology necessarily gives a speaker a
potential worldwide audience. Because the Internet is a network of networks (as
described above in Findings 1 through 4), any network connected to the Internet
has the capacity to send and receive information to any other network. Hotwired
Ventures, for example, cannot prevent its materials on mixology from entering
communities that have no interest in that topic.

87. Demonstrations at the preliminary injunction hearings showed that it
takes several steps to enter cyberspace. At the most fundamental level, a user
must have access to a computer with the ability to reach the Internet (typically
by way of a modem). A user must then direct the computer to connect with the
access provider, enter a password, and enter the appropriate commands to find
particular data. On the World Wide Web, a user must normally use a search
engine or enter an appropriate address. Similarly, accessing newsgroups,
bulletin boards, and chat rooms requires several steps.

88. Communications over the Internet do not "invade" an
individual's home or appear on one's computer screen unbidden. Users seldom
encounter content "by accident." A document's title or a description
of the document will usually appear before the document itself takes the step
needed to view it, and in many cases the user will receive detailed information
about a site's content before he or she need take the step to access the
document. Almost all sexually explicit images are preceded by warnings as to
the content. Even the Government's witness, Agent Howard Schmidt, Director of
the Air Force Office of Special Investigation, testified that the "odds are
slim" that a user would come across a sexually explicit site by accident.

89. Evidence adduced at the hearing showed significant differences between
Internet communications and communications received by radio or television.
Although content on the Internet is just a few clicks of a mouse away from the
user, the receipt of information on the Internet requires a series of
affirmative steps more deliberate and directed than merely turning a dial. A
child requires some sophistication and some ability to read to retrieve material
and thereby to use the Internet unattended.

Obstacles to Age Verification on the Internet

90. There is no effective way to determine the identity or the age of a
user who is accessing material through e-mail, mail exploders, newsgroups or
chat rooms. An e-mail address provides no authoritative information about the
addressee, who may use an e-mail "alias" or an anonymous remailer.
There is also no universal or reliable listing of e-mail addresses and
corresponding names or telephone numbers, and any such listing would be or
rapidly become incomplete. For these reasons, there is no reliable way in many
instances for a sender to know if the e-mail recipient is an adult or a minor.
The difficulty of e-mail age verification is compounded for mail exploders such
as listservs, which automatically send information to all e-mail addresses on a
sender's list. Government expert Dr. Olsen agreed that no current technology
could give a speaker assurance that only adults were listed in a particular mail
exploder's mailing list.

91. Because of similar technological difficulties, individuals posting a
message to a newsgroup or engaging in chat room discussions cannot ensure that
all readers are adults, and Dr. Olsen agreed. Although some newsgroups are
moderated, the moderator's control is limited to what is posted and the
moderator cannot control who receives the messages.

92. The Government offered no evidence that there is a reliable way to
ensure that recipients and participants in such fora can be screened for age.
The Government presented no evidence demonstrating the feasibility of its
suggestion that chat rooms, newsgroups and other fora that contain material
deemed indecent could be effectively segregated to "adult" or "moderated"
areas of cyberspace.

93. Even if it were technologically feasible to block minors' access to
newsgroups and similar fora, there is no method by which the creators of
newsgroups which contain discussions of art, politics or any other subject that
could potentially elicit "indecent" contributions could limit the
blocking of access by minors to such "indecent" material and still
allow them access to the remaining content, even if the overwhelming majority of
that content was not indecent.

94. Likewise, participants in MUDs (Multi-User Dungeons) and MUSEs
(Multi-User Simulation Environments) do not know whether the other participants
are adults or minors. Although MUDs and MUSEs require a password for permanent
participants, they need not give their real name nor verify their age, and there
is no current technology to enable the administrator of these fantasy worlds to
know if the participant is an adult or a minor.

95. Unlike other forms of communication on the Internet, there is
technology by which an operator of a World Wide Web server may interrogate a
user of a Web site. An HTML document can include a fill-in-the-blank "form"
to request information from a visitor to a Web site, and this information can be
transmitted back to the Web server and be processed by a computer program,
usually a Common Gateway Interface (cgi) script. The Web server could then
grant or deny access to the information sought. The cgi script is the means by
which a Web site can process a fill-in form and thereby screen visitors by
requesting a credit card number or adult password.

96. Content providers who publish on the World Wide Web via one of the
large commercial online services, such as America Online or CompuServe, could
not use an online age verification system that requires cgi script because the
server software of these online services available to subscribers cannot process
cgi scripts. There is no method currently available for Web page publishers who
lack access to cgi scripts to screen recipients online for age.

The Practicalities of the Proffered Defenses

Note: The Government contends the CDA makes available three potential
defenses to all content providers on the Internet: credit card verification,
adult verification by password or adult identification number, and "tagging".

Credit Card Verification

97. Verification(19) of a credit card number over the Internet is not now
technically possible. Witnesses testified that neither Visa nor Mastercard
considers the Internet to be sufficiently secure under the current technology to
process transactions in that manner. Although users can and do purchase
products over the Internet by transmitting their credit card number, the seller
must then process the transaction with Visa or Mastercard off-line using phone
lines in the traditional way. There was testimony by several witnesses that
Visa and Mastercard are in the process of developing means of credit card
verification over the Internet.

98. Verification by credit card, if and when operational, will remain
economically and practically unavailable for many of the non-commercial
plaintiffs in these actions. The Government's expert "suspect[ed]"
that verification agencies would decline to process a card unless it accompanied
a commercial transaction. There was no evidence to the contrary.

99. There was evidence that the fee charged by verification agencies to
process a card, whether for a purchase or not, will preclude use of the
credit-card verification defense by many non-profit, non-commercial Web sites,
and there was no evidence to the contrary. Plaintiffs' witness Patricia Nell
Warren, an author whose free Web site allows users to purchase gay and lesbian
literature, testified that she must pay $1 per verification to a verification
agency. Her Web site can absorb this cost because it arises in connection with
the sale of books available there.

100. Using credit card possession as a surrogate for age, and requiring use
of a credit card to enter a site, would impose a significant economic cost on
non-commercial entities. Critical Path, for example, received 3,300 hits daily
from February 4 through March 4, 1996. If Critical Path must pay a fee every
time a user initially enters its site, then, to provide free access to its
non-commercial site, it would incur a monthly cost far beyond its modest
resources. The ACLU's Barry Steinhardt testified that maintenance of a credit
card verification system for all visitors to the ACLU's Web site would require
it to shut down its Web site because the projected cost would exceed its budget.

101. Credit card verification would significantly delay the retrieval of
information on the Internet. Dr. Olsen, the expert testifying for the
Government, agreed that even "a minute is [an] absolutely unreasonable
[delay] . . . [P]eople will not put up with a minute." Plaintiffs' expert
Donna Hoffman similarly testified that excessive delay disrupts the "flow"
on the Internet and stifles both "hedonistic" and "goal-directed"
browsing.

102. Imposition of a credit card requirement would completely bar adults
who do not have a credit card and lack the resources to obtain one from
accessing any blocked material. At this time, credit card verification is
effectively unavailable to a substantial number of Internet content providers as
a potential defense to the CDA.

Adult Verification by Password

103. The Government offered very limited evidence regarding the operation
of existing age verification systems, and the evidence offered was not based on
personal knowledge. AdultCheck and Verify, existing systems which appear to be
used for accessing commercial pornographic sites, charge users for their
services. Dr. Olsen admitted that his knowledge of these services was derived
primarily from reading the advertisements on their Web pages. He had not
interviewed any employees of these entities, had not personally used these
systems, had no idea how many people are registered with them, and could not
testify to the reliability of their attempt at age verification.

104. At least some, if not almost all, non-commercial organizations, such
as the ACLU, Stop Prisoner Rape or Critical Path AIDS Project, regard charging
listeners to access their speech as contrary to their goals of making their
materials available to a wide audience free of charge.

105. It would not be feasible for many non-commercial organizations to
design their own adult access code screening systems because the administrative
burden of creating and maintaining a screening system and the ongoing costs
involved is beyond their reach. There was testimony that the costs would be
prohibitive even for a commercial entity such as HotWired, the online version of
Wired magazine.

106. There is evidence suggesting that adult users, particularly casual Web
browsers, would be discouraged from retrieving information that required use of
a credit card or password. Andrew Anker testified that HotWired has received
many complaints from its members about HotWired's registration system, which
requires only that a member supply a name, e-mail address and self-created
password. There is concern by commercial content providers that age
verification requirements would decrease advertising and revenue because
advertisers depend on a demonstration that the sites are widely available and
frequently visited.

107. Even if credit card verification or adult password verification were
implemented, the Government presented no testimony as to how such systems could
ensure that the user of the password or credit card is in fact over 18. The
burdens imposed by credit card verification and adult password verification
systems make them effectively unavailable to a substantial number of Internet
content providers.

The Government's "Tagging" Proposal

108. The feasibility and effectiveness of "tagging" to restrict
children from accessing "indecent" speech, as proposed by the
Government has not been established. "Tagging" would require content
providers to label all of their "indecent" or "patently offensive"
material by imbedding a string of characters, such as "XXX," in either
the URL or HTML. If a user could install software on his or her computer to
recognize the "XXX" tag, the user could screen out any content with
that tag. Dr. Olsen proposed a "-L18" tag, an idea he developed for
this hearing in response to Mr. Bradner's earlier testimony that certain tagging
would not be feasible.

109. The parties appear to agree that it is technologically feasible -- "trivial",
in the words of plaintiffs' expert -- to imbed tags in URLs and HTML, and the
technology of tagging underlies both plaintiffs' PICS proposal and the
Government's "-L18" proposal.

110. The Government's tagging proposal would require all content providers
that post arguably "indecent" material to review all of their online
content, a task that would be extremely burdensome for organizations that
provide large amounts of material online which cannot afford to pay a large
staff to review all of that material. The Carnegie Library would be required to
hire numerous additional employees to review its on-line files at an extremely
high cost to its limited budget. The cost and effort would be substantial for
the Library and frequently prohibitive for others. Witness Kiroshi Kuromiya
testified that it would be impossible for his organization, Critical Path, to
review all of its material because it has only one full and one part-time
employee.

111. The task of screening and tagging cannot be done simply by using
software which screens for certain words, as Dr. Olsen acknowledged, and we find
that determinations as to what is indecent require human judgment.

112. In lieu of reviewing each file individually, a content provider could
tag its entire site but this would prevent minors from accessing much material
that is not "indecent" under the CDA.

113. To be effective, a scheme such as the -L18 proposal would require a
worldwide consensus among speakers to use the same tag to label "indecent"
material. There is currently no such consensus, and no Internet speaker
currently labels its speech with the -L18 code or with any other
widely-recognized label.

114. Tagging also assumes the existence of software that recognizes the tags
and takes appropriate action when it notes tagged speech. Neither commercial
Web browsers nor user-based screening software is currently configured to block
a -L18 code. Until such software exists, all speech on the Internet will
continue to travel to whomever requests it, without hindrance. Labelling speech
has no effect in itself on the transmission (or not) of that speech. Neither
plaintiffs nor the Government suggest that tagging alone would shield minors
from speech or insulate a speaker from criminal liability under the CDA. It
follows that all speech on any topic that is available to adults will also be
available to children using the Internet (unless it is blocked by screening
software running on the computer the child is using).

115. There is no way that a speaker can use current technology to know if a
listener is using screening software.

116. Tags can not currently activate or deactivate themselves depending on
the age or location of the receiver. Critical Path, which posts on-line safer
sex instructions, would be unable to imbed tags that block its speech only in
communities where it may be regarded as indecent. Critical Path, for example,
must choose either to tag its site (blocking its speech in all communities) or
not to tag, blocking its speech in none.

The Problems of Offshore Content and Caching

117. A large percentage, perhaps 40% or more, of content on the Internet
originates outside the United States. At the hearing, a witness demonstrated
how an Internet user could access a Web site of London (which presumably is on a
server in England), and then link to other sites of interest in England. A user
can sometimes discern from a URL that content is coming from overseas, since
InterNIC allows a content provider to imbed a country code in a domain name.(20)
Foreign content is otherwise indistinguishable from domestic content (as long
as it is in English), since foreign speech is created, named, and posted in the
same manner as domestic speech. There is no requirement that foreign speech
contain a country code in its URL. It is undisputed that some foreign speech
that travels over the Internet is sexually explicit.

118. The use of "caching" makes it difficult to determine whether
the material originated from foreign or domestic sources. Because of the high
cost of using the trans- Atlantic and trans-Pacific cables, and because the high
demand on those cables leads to bottleneck delays, content is often "cached",
or temporarily stored, on servers in the United States. Material from a foreign
source in Europe can travel over the trans-Atlantic cable to the receiver in the
United States, and pass through a domestic caching server which then stores a
copy for subsequent retrieval. This domestic caching server, rather than the
original foreign server, will send the material from the cache to the subsequent
receivers, without placing a demand on the trans-oceanic cables. This shortcut
effectively eliminates most of the distance for both the request and the
information and, hence, most of the delay. The caching server discards the
stored information according to its configuration (e.g., after a certain time or
as the demand for the information diminishes). Caching therefore advances core
Internet values: the cheap and speedy retrieval of information.

119. Caching is not merely an international phenomenon. Domestic content
providers store popular domestic material on their caching servers to avoid the
delay of successive searches for the same material and to decrease the demand on
their Internet connection. America Online can cache the home page of the New
York Times on its servers when a subscriber first requests it, so that
subsequent subscribers who make the same request will receive the same home
page, but from America Online's caching service rather than from the New York
Times's server.(21)

120. Put simply, to follow the example in the prior paragraph, America
Online has no control over the content that the New York Times posts to its Web
site, and the New York Times has no control over America Online's distribution
of that content from a caching server.

Anonymity

121. Anonymity is important to Internet users who seek to access sensitive
information, such as users of the Critical Path AIDS Project's Web site, the
users, particularly gay youth, of Queer Resources Directory, and users of Stop
Prisoner Rape (SPR). Many members of SPR's mailing list have asked to remain
anonymous due to the stigma of prisoner rape.

Plaintiffs' Choices Under the CDA

122. Many speakers who display arguably indecent content on the Internet
must choose between silence and the risk of prosecution. The CDA's defenses --
credit card verification, adult access codes, and adult personal identification
numbers -- are effectively unavailable for non-commercial, not-for-profit
entities.

123. The plaintiffs in this action are businesses, libraries,
non-commercial and not-for-profit organizations, and educational societies and
consortia. Although some of the material that plaintiffs post online -- such as
information regarding protection from AIDS, birth control or prison rape -- is
sexually explicit and may be considered "indecent" or "patently
offensive" in some communities, none of the plaintiffs is a commercial
purveyor of what is commonly termed "pornography."

III.

CONCLUSIONS OF LAW

Plaintiffs have established a reasonable probability of eventual success in
the litigation by demonstrating that §§ 223(a)(1)(B) and 223(a)(2) of
the CDA are unconstitutional on their face to the extent that they reach
indecency. Sections 223(d)(1) and 223(d)(2) of the CDA are unconstitutional on
their face. Accordingly, plaintiffs have shown irreparable injury, no party has
any interest in the enforcement of an unconstitutional law, and therefore the
public interest will be served by granting the preliminary injunction. Elrod v.
Burns, 427 U.S. 347, 373-74 (1976); Hohe v. Casey, 868 F.2d 69, 72 (3d Cir.),
cert. denied, 493 U.S. 848 (1989); Acierno v. New Castle County, 40 F.3d 645,
653 (3d Cir. 1994). The motions for preliminary injunction will therefore be
granted.

The views of the members of the Court in support of these conclusions
follow.

SLOVITER, Chief Judge, Court of Appeals for the Third Circuit:

A.

Statutory Provisions

As noted in Part I, Introduction, the plaintiffs' motion for a preliminary
injunction is confined to portions of two provisions of the Communications
Decency Act of 1996, § 223(a) and § 223(d), which they contend violate
their First Amendment free speech and Fifth Amendment due process rights. To
facilitate reference, I set forth those provisions in full. Section 223(a), the
"indecency" provision, subjects to criminal penalties of imprisonment
of no more than two years or a fine or both anyone who:

1) in interstate or foreign communications . . .

(B) by means of a telecommunications device

knowingly --

(i) makes, creates, or solicits, and

(ii) initiates the transmission of,

any comment, request, suggestion, proposal, image, or other communication
which is obscene or indecent, knowing that the recipient of the communication is
under 18 years of age, regardless of whether the maker of such communication
placed the call or initiated the communication; . . .

(2) knowingly permits any telecommunications facility under his control to
be used for any activity prohibited by paragraph (1) with the intent that it be
used for such activity.

(emphasis added).

The term "telecommunications device" is specifically defined not
to include "the use of an interactive computer service," as that is
covered by section 223(d)(1).

(A) uses an interactive computer service to send to a specific person or
persons under 18 years of age, or

(B) uses any interactive computer service to display in a manner available
to a person under 18 years of age, any comment, request, suggestion, proposal,
image or other communication that, in context, depicts or describes, in terms
patently offensive as measured by contemporary community standards, sexual or
excretory activities or organs, regardless of whether the use of such service
placed the call or initiated the communication; or

(2) knowingly permits any telecommunications facility under such person's
control to be used for an activity prohibited by paragraph (1) with the intent
that it be used for such activity.

(emphasis added).

Two aspects of these provisions stand out. First, we are dealing with
criminal provisions, subjecting violators to substantial penalties. Second, the
provisions on indecent and patently offensive communications are not parallel.

The government uses the term "indecent" interchangeably with "patently
offensive" and advises that it so construes the statute in light of the
legislative history and the Supreme Court's analysis of the word "indecent"
in FCC v. Pacifica Foundation, 438 U.S. 726 (1978). However, the CDA does not
define "indecent." Notwithstanding Congress' familiarity with
Pacifica, it enacted § 223(a), covering "indecent"
communications, without any language confining "indecent" to
descriptions or depictions of "sexual or excretory activities or organs,"
language it included in the reference to "patently offensive" in §
223(d)(1)(B). Nor does § 223(a) contain the phrase "in context,"
which the government believes is relevant.

The failure to define "indecent" in § 223(a) is thus arguably
a negative pregnant and subject to "the rule of construction that an
express statutory requirement here, contrasted with statutory silence there,
shows an intent to confine the requirement to the specified instance."
Field v. Mans, 116 S.Ct. 437, 442 (1995). See also Gozlon-Peretz v. United
States, 498 U.S. 395, 404 (1991) ("'[W]here Congress includes particular
language in one section of a statute but omits it in another section of the same
Act, it is generally presumed that Congress acts intentionally and purposely in
the disparate inclusion or exclusion'") (quoting Russello v. United States,
464 U.S. 16, 23 (1983)).

Plaintiffs note the difference but do not press this as a basis for
distinguishing between the two sections in their preliminary injunction
arguments and therefore I will also use the words interchangeably for this
purpose, leaving open the issue for consideration at the final judgment stage if
it becomes relevant.

B.

Preliminary Injunction Standard

To obtain a preliminary injunction, plaintiffs must establish that they are
likely to prevail on the merits and that they will suffer irreparable harm if
injunctive relief is not granted. We also must consider whether the potential
harm to the defendant from issuance of a temporary restraining order outweighs
possible harm to the plaintiffs if such relief is denied, and whether the
granting of injunctive relief is in the public interest. See Campbell Soup Co.
v. ConAgra, Inc., 977 F.2d 86, 90-91 (3d Cir. 1992); Bradley v. Pittsburgh Bd.
of Educ., 910 F.2d 1172, 1175 (3d Cir. 1990).

In a case in which the injury alleged is a threat to First Amendment
interests, the finding of irreparable injury is often tied to the likelihood of
success on the merits. In Elrod v. Burns, 427 U.S. 347 (1976), the Supreme
Court emphasized that "the loss of First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes irreparable injury."
Id. at 373 (citing New York Times Co. v. United States, 403 U.S. 713 (1971)).

Subjecting speakers to criminal penalties for speech that is
constitutionally protected in itself raises the spectre of irreparable harm.
Even if a court were unwilling to draw that conclusion from the language of the
statute itself, plaintiffs have introduced ample evidence that the challenged
provisions, if not enjoined, will have a chilling effect on their free
expression. Thus, this is not a case in which we are dealing with a mere
incidental inhibition on speech, see Hohe v. Casey, 868 F.2d 69, 73 (3d Cir.),
cert. denied, 493 U.S. 848 (1989), but with a regulation that directly penalizes
speech.

Nor could there be any dispute about the public interest factor which must
be taken into account before a court grants a preliminary injunction. No long
string of citations is necessary to find that the public interest weighs in
favor of having access to a free flow of constitutionally protected speech.
See, e.g., Turner Broadcasting System, Inc. v. FCC, 114 S. Ct. 2445, 2458
(1994); Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S.
748, 763-65 (1976).

Thus, if plaintiffs have shown a likelihood of success on the merits, they
will have shown the irreparable injury needed to entitle them to a preliminary
injunction.

C.

Applicable Standard of Review

The CDA is patently a government-imposed content-based restriction on
speech, and the speech at issue, whether denominated "indecent" or "patently
offensive," is entitled to constitutional protection. See Sable
Communications of California, Inc. v. FCC, 492 U.S. 115, 126 (1989). As such,
the regulation is subject to strict scrutiny, and will only be upheld if it is
justified by a compelling government interest and if it is narrowly tailored to
effectuate that interest. Sable, 492 U.S. at 126; see also Turner Broadcasting,
114 S. Ct. at 2459 (1994). "[T]he benefit gained [by a content-based
restriction] must outweigh the loss of constitutionally protected rights."
Elrod v. Burns, 427 U.S. at 363.

The government's position on the applicable standard has been less than
pellucid but, despite some references to a somewhat lesser burden employed in
broadcasting cases, it now appears to have conceded that it has the burden of
proof to show both a compelling interest and that the statute regulates least
restrictively. Tr. of Preliminary Injunction Hearing at 121 (May 10, 1996). In
any event, the evidence and our Findings of Fact based thereon show that
Internet communication, while unique, is more akin to telephone communication,
at issue in Sable, than to broadcasting, at issue in Pacifica, because, as with
the telephone, an Internet user must act affirmatively and deliberately to
retrieve specific information online. Even if a broad search will, on occasion,
retrieve unwanted materials, the user virtually always receives some warning of
its content, significantly reducing the element of surprise or "assault"
involved in broadcasting. Therefore, it is highly unlikely that a very young
child will be randomly "surfing" the Web and come across "indecent"
or "patently offensive" material.

Judge Dalzell's separate opinion fully explores the reasons for the
differential treatment of radio and television broadcasting for First Amendment
purposes from that accorded other means of communication. It follows that to
the extent the Court employed a less than strict scrutiny standard of review in
Pacifica and other broadcasting cases, see, e.g., Red Lion Broadcasting Co. v.
FCC, 395 U.S. 367 (1969), there is no reason to employ a less than strict
scrutiny standard of review in this case.

D.

The Nature of the Government's Interest

The government asserts that shielding minors from access to indecent
materials is the compelling interest supporting the CDA. It cites in support
the statements of the Supreme Court that "[i]t is evident beyond the need
for elaboration that a State's interest in `safeguarding the physical and
psychological well-being of a minor' is `compelling,'" New York v. Ferber,
458 U.S. 747, 757 (1982)(quoting Globe Newspaper Co. v. Superior Court, 457 U.S.
596, 607 (1982)), and "there is a compelling interest in protecting the
physical and psychological well-being of minors. This interest extends to
shielding minors from the influence of literature that is not obscene by adult
standards." Sable, 492 U.S at 126. It also cites the similar quotation
appearing in Fabulous Assoc., Inc. v. Pennsylvania Public Utility Comm'n, 896
F.2d 780, 787 (3d Cir. 1990).

Those statements were made in cases where the potential harm to children
from the material was evident. Ferber involved the constitutionality of a
statute which prohibited persons from knowingly promoting sexual performances by
children under 16 and distributing material depicting such performances. Sable
and Fabulous involved the FCC's ban on "dial-a-porn" (dealing by
definition with pornographic telephone messages). In contrast to the material
at issue in those cases, at least some of the material subject to coverage under
the "indecent" and "patently offensive" provisions of the
CDA may contain valuable literary, artistic or educational information of value
to older minors as well as adults. The Supreme Court has held that "minors
are entitled to a significant measure of First Amendment protection, and only in
relatively narrow and well-defined circumstances may government bar public
dissemination of protected materials to them." Erznoznik v. City of
Jacksonville, 422 U.S. 205, 212-213 (1975)(citations omitted).

In Erznoznik, the Court rejected an argument that an ordinance prohibiting
the display of films containing nudity at drive-in movie theatres served a
compelling interest in protecting minor passersby from the influence of such
films. The Court held that the prohibition was unduly broad, and explained that
"[s]peech that is neither obscene as to youths nor subject to some other
legitimate proscription cannot be suppressed solely to protect the young from
ideas or images that a legislative body thinks unsuitable for them." 422
U.S. at 213-14. As Justice Scalia noted in Sable, "[t]he more pornographic
what is embraced within the . . . category of `indecency,' the more reasonable
it becomes to insist upon greater assurance of insulation from minors."
Sable, 492 U.S. at 132 (Scalia, J., concurring). It follows that where
non-pornographic, albeit sexually explicit, material also falls within the sweep
of the statute, the interest will not be as compelling.

In part, our consideration of the government's showing of a "compelling
interest" trenches upon the vagueness issue, discussed in detail in Judge
Buckwalter's opinion but equally pertinent to First Amendment analysis.
Material routinely acceptable according to the standards of New York City, such
as the Broadway play Angels in America which concerns homosexuality and AIDS
portrayed in graphic language, may be far less acceptable in smaller, less
cosmopolitan communities of the United States. Yet the play garnered two Tony
Awards and a Pulitzer prize for its author, and some uninhibited parents and
teachers might deem it to be material to be read or assigned to eleventh and
twelfth graders. If available on the Internet through some libraries, the text
of the play would likely be accessed in that manner by at least some students,
and it would also arguably fall within the scope of the CDA.

There has been recent public interest in the female genital mutilation
routinely practiced and officially condoned in some countries. News articles
have been descriptive, and it is not stretching to assume that this is a subject
that occupies news groups and chat rooms on the Internet. We have no assurance
that these discussions, of obvious interest and relevance to older teenage
girls, will not be viewed as patently offensive - even in context - in some
communities.

Other illustrations abound of non-obscene material likely to be available on
the Internet but subject to the CDA's criminal provisions. Photographs
appearing in National Geographic or a travel magazine of the sculptures in India
of couples copulating in numerous positions, a written description of a brutal
prison rape, or Francesco Clemente's painting "Labirinth," see Def.
Exh. 125, all might be considered to "depict or describe, in terms patently
offensive as measured by contemporary community standards, sexual or excretory
activities or organs." 47 U.S.C. § 223(d)(1). But the government has
made no showing that it has a compelling interest in preventing a
seventeen-year-old minor from accessing such images.

By contrast, plaintiffs presented testimony that material that could be
considered indecent, such as that offered by Stop Prisoner Rape or Critical Path
AIDS project, may be critically important for certain older minors. For
example, there was testimony that one quarter of all new HIV infections in the
United States is estimated to occur in young people between the ages of 13 and
20, an estimate the government made no effort to rebut. The witnesses believed
that graphic material that their organizations post on the Internet could help
save lives, but were concerned about the CDA's effect on their right to do so.

The government counters that this court should defer to legislative
conclusions about this matter. However, where First Amendment rights are at
stake, "[d]eference to a legislative finding cannot limit judicial inquiry."
Sable, 492 U.S. at 129 (quoting Landmark Communications, Inc. v. Virginia, 435
U.S. 829, 843 (1978)). "[W]hatever deference is due legislative findings
would not foreclose our independent judgment of the facts bearing on an issue of
constitutional law." Id.

Moreover, it appears that the legislative "findings" the
government cites concern primarily testimony and statements by legislators about
the prevalence of obscenity, child pornography, and sexual solicitation of
children on the Internet. Similarly, at the hearings before us the government
introduced exhibits of sexually explicit material through the testimony of Agent
Howard Schmidt, which consisted primarily of the same type of hard-core
pornographic materials (even if not technically obscene) which concerned
Congress and which fill the shelves of "adult" book and magazine
stores. Plaintiffs emphasize that they do not challenge the Act's restrictions
on speech not protected by the First Amendment, such as obscenity, child
pornography or harassment of children. Their suit is based on their assertion,
fully supported by their evidence and our findings, that the CDA reaches much
farther.

I am far less confident than the government that its quotations from earlier
cases in the Supreme Court signify that it has shown a compelling interest in
regulating the vast range of online material covered or potentially covered by
the CDA. Nonetheless, I acknowledge that there is certainly a compelling
government interest to shield a substantial number of minors from some of the
online material that motivated Congress to enact the CDA, and do not rest my
decision on the inadequacy of the government's showing in this regard.

E.

The Reach of the Statute

Whatever the strength of the interest the government has demonstrated in
preventing minors from accessing "indecent" and "patently
offensive" material online, if the means it has chosen sweeps more broadly
than necessary and thereby chills the expression of adults, it has overstepped
onto rights protected by the First Amendment. Sable, 492 U.S. at 131.

The plaintiffs argue that the CDA violates the First Amendment because it
effectively bans a substantial category of protected speech from most parts of
the Internet. The government responds that the Act does not on its face or in
effect ban indecent material that is constitutionally protected for adults.
Thus one of the factual issues before us was the likely effect of the CDA on the
free availability of constitutionally protected material. A wealth of
persuasive evidence, referred to in detail in the Findings of Fact, proved that
it is either technologically impossible or economically prohibitive for many of
the plaintiffs to comply with the CDA without seriously impeding their posting
of online material which adults have a constitutional right to access.

With the possible exception of an e-mail to a known recipient, most content
providers cannot determine the identity and age of every user accessing their
material. Considering separately content providers that fall roughly into two
categories, we have found that no technology exists which allows those posting
on the category of newsgroups, mail exploders or chat rooms to screen for age.
Speakers using those forms of communication cannot control who receives the
communication, and in most instances are not aware of the identity of the
recipients. If it is not feasible for speakers who communicate via these forms
of communication to conduct age screening, they would have to reduce the level
of communication to that which is appropriate for children in order to be
protected under the statute. This would effect a complete ban even for adults
of some expression, albeit "indecent," to which they are
constitutionally entitled, and thus would be unconstitutional under the holding
in Sable, 492 U.S. at 131.

Even as to content providers in the other broad category, such as the World
Wide Web, where efforts at age verification are technically feasible through the
use of Common Gateway Interface (cgi) scripts (which enable creation of a
document that can process information provided by a Web visitor), the Findings
of Fact show that as a practical matter, non-commercial organizations and even
many commercial organizations using the Web would find it prohibitively
expensive and burdensome to engage in the methods of age verification proposed
by the government, and that even if they could attempt to age verify, there is
little assurance that they could successfully filter out minors.

The government attempts to circumvent this problem by seeking to limit the
scope of the statute to those content providers who are commercial
pornographers, and urges that we do likewise in our obligation to save a
congressional enactment from facial unconstitutionality wherever possible. But
in light of its plain language and its legislative history, the CDA cannot
reasonably be read as limited to commercial pornographers. A court may not
impose a narrowing construction on a statute unless it is "readily
susceptible" to such a construction. Virginia v. American Booksellers
Ass'n, 484 U.S. 383, 397 (1988). The court may not "rewrite a . . . law to
conform it to constitutional requirements." Id. Although we may prefer an
interpretation of a statute that will preserve the constitutionality of the
statutory scheme, United State v. Clark, 445 U.S. 23, 27 (1980), we do not have
license to rewrite a statute to "create distinctions where none were
intended." American Tobacco Co. v. Patterson, 456 U.S. 63, 72 n.6 (1982);
see also Consumer Party v. Davis, 778 F.2d 140, 147 (3d Cir. 1985). The Court
has often stated that "absent a clearly expressed legislative intention to
the contrary, [statutory] language must ordinarily be regarded as conclusive."
Escondido Mut. Water Co. v. La Jolla Band of Mission Indians, 466 U.S. 765, 772
(1984)(quoting North Dakota v. United States, 460 U.S. 300, 312 (1983)).

It is clear from the face of the CDA and from its legislative history that
Congress did not intend to limit its application to commercial purveyors of
pornography. Congress unquestionably knew how to limit the statute to such
entities if that was its intent, and in fact it did so in provisions relating to
dial-a-porn services. See 47 U.S.C. § 223(b)(2)(A) (criminalizing making
any indecent telephone communication "for commercial purposes"). It
placed no similar limitation in the CDA. Moreover, the Conference Report makes
clear that Congress did not intend to limit the application of the statute to
content providers such as those which make available the commercial material
contained in the government's exhibits, and confirms that Congress intended "content
regulation of both commercial and non-commercial providers." Conf. Rep. at
191. See also, 141 Cong. Rec. S8089 (daily ed. June 9, 1995) (Statement of
Senator Exon).

The scope of the CDA is not confined to material that has a prurient
interest or appeal, one of the hallmarks of obscenity, because Congress sought
to reach farther. Nor did Congress include language that would define "patently
offensive" or "indecent" to exclude material of serious value.
It follows that to narrow the statute in the manner the government urges would
be an impermissible exercise of our limited judicial function, which is to
review the statute as written for its compliance with constitutional mandates.

I conclude inexorably from the foregoing that the CDA reaches speech subject
to the full protection of the First Amendment, at least for adults.(1) In
questions of the witnesses and in colloquy with the government attorneys, it
became evident that even if "indecent" is read as parallel to "patently
offensive," the terms would cover a broad range of material from
contemporary films, plays and books showing or describing sexual activities
(e.g., Leaving Las Vegas) to controversial contemporary art and photographs
showing sexual organs in positions that the government conceded would be
patently offensive in some communities (e.g., a Robert Mapplethorpe photograph
depicting a man with an erect penis).

We have also found that there is no effective way for many Internet content
providers to limit the effective reach of the CDA to adults because there is no
realistic way for many providers to ascertain the age of those accessing their
materials. As a consequence, we have found that "[m]any speakers who
display arguably indecent content on the Internet must choose between silence
and the risk of prosecution." Such a choice, forced by sections 223(a) and
(d) of the CDA, strikes at the heart of speech of adults as well as minors.

F.

Whether CDA is Narrowly Tailored

In the face of such a patent intrusion on a substantial category of
protected speech for adults, there is some irony in considering whether the
statute is narrowly tailored or, as sometimes put, whether Congress has used the
least restrictive means to achieve a compelling government interest. See Sable,
492 U.S. at 126. It would appear that the extent of the abridgement of the
protected speech of adults that it has been shown the CDA would effect is too
intrusive to be outweighed by the government's asserted interest, whatever its
strength, in protecting minors from access to indecent material. Nonetheless,
the formulation of the inquiry requires that we consider the government's
assertion that the statute is narrowly drafted, and I proceed to do so.

In this case, the government relies on the statutory defenses for its
argument of narrow tailoring. There are a number of reasons why I am not
persuaded that the statutory defenses can save the CDA from a conclusion of
facial unconstitutionality.

First, it is difficult to characterize a criminal statute that hovers over
each content provider, like the proverbial sword of Damocles, as a narrow
tailoring. Criminal prosecution, which carries with it the risk of public
obloquy as well as the expense of court preparation and attorneys' fees, could
itself cause incalculable harm. No provider, whether an individual, non-profit
corporation, or even large publicly held corporation, is likely to willingly
subject itself to prosecution for a miscalculation of the prevalent community
standards or for an error in judgment as to what is indecent. A successful
defense to a criminal prosecution would be small solace indeed.

Credit card and adult verification services are explicitly referred to as
defenses in § 223(e)(5)(B) of the CDA. As is set forth fully in the
detailed Findings of Fact, these defenses are not technologically or
economically feasible for most providers.

The government then falls back on the affirmative defense to prosecution
provided in § 223(e)(5)(A) for a person who "has taken, in good faith,
reasonable, effective, and appropriate actions under the circumstances to
restrict or prevent access by minors to a communication specified in such
subsections . . . including any method which is feasible under available
technology." The government emphasizes that "effective" does not
require 100% restriction, and that this defense is "open-ended" and
requires only reasonable efforts based on current technology.

But, as the evidence made clear, there is no such technology at this time.
The government proffered as one option that would constitute a valid affirmative
defense under § 223(e)(5)(A) a "tagging" scheme conceived by Dr.
Olsen in response to this lawsuit whereby a string of characters would be
imbedded in all arguably indecent or patently offensive material. Our Findings
of Fact set forth fully the reasons why we found that the feasibility and
effectiveness of tagging in the manner proposed by the government has not been
established. All parties agree that tagging alone does nothing to prevent
children from accessing potentially indecent material, because it depends upon
the cooperation of third parties to block the material on which the tags are
embedded. Yet these third parties, over which the content providers have no
control, are not subject to the CDA. I do not believe a statute is narrowly
tailored when it subjects to potential criminal penalties those who must depend
upon third parties for the effective operation of a statutory defense.

Most important, the government's "tagging" proposal is purely
hypothetical and offers no currently operative defense to Internet content
providers. At this time, there is no agreed-upon "tag" in existence,
and no web browsers or user-based screening systems are now configured to block
tagged material. Nor, significantly, has the government stipulated that a
content provider could avoid liability simply by tagging its material.

Third, even if the technology catches up, as the government confidently
predicts, there will still be a not insignificant burden attached to effecting a
tagging defense, a burden one should not have to bear in order to transmit
information protected under the constitution. For example, to effect tagging
content providers must review all of their material currently published online,
as well as all new material they post in the future, to determine if it could be
considered "patently offensive" in any community nationwide. This
would be burdensome for all providers, but for the many not-for-profit entities
which currently post thousands of Web pages, this burden would be one impossible
to sustain.

Finally, the viability of the defenses is intricately tied to the clarity of
the CDA's scope. Because, like Judge Buckwalter, and for many of the reasons he
gives, I believe that "indecent" and "patently offensive"
are inherently vague, particularly in light of the government's inability to
identify the relevant community by whose standards the material will be judged,
I am not persuaded by the government that the statutory defenses in §
223(e) provide effective protection from the unconstitutional reach of the
statute.

Minors would not be left without any protection from exposure to patently
unsuitable material on the Internet should the challenged provisions of the CDA
be preliminarily enjoined. Vigorous enforcement of current obscenity and child
pornography laws should suffice to address the problem the government identified
in court and which concerned Congress. When the CDA was under consideration by
Congress, the Justice Department itself communicated its view that it was not
necessary because it was prosecuting online obscenity, child pornography and
child solicitation under existing laws, and would continue to do so.(2) It
follows that the CDA is not narrowly tailored, and the government's attempt to
defend it on that ground must fail.

G.

Preliminary Injunction

When Congress decided that material unsuitable for minors was available on
the Internet, it could have chosen to assist and support the development of
technology that would enable parents, schools, and libraries to screen such
material from their end. It did not do so, and thus did not follow the example
available in the print media where non-obscene but indecent and patently
offensive books and magazines abound. Those responsible for minors undertake
the primary obligation to prevent their exposure to such material. Instead, in
the CDA Congress chose to place on the speakers the obligation of screening the
material that would possibly offend some communities.

Whether Congress' decision was a wise one is not at issue here. It was
unquestionably a decision that placed the CDA in serious conflict with our most
cherished protection - the right to choose the material to which we would have
access.

The government makes what I view as an extraordinary argument in its brief.
It argues that blocking technology needed for effective parental control is not
yet widespread but that it "will imminently be in place." Government's
Post-hearing Memorandum at 66. It then states that if we uphold the CDA, it "will
likely unleash the 'creative genius' of the Internet community to find a myriad
of possible solutions." I can imagine few arguments less likely to
persuade a court to uphold a criminal statute than one that depends on future
technology to cabin the reach of the statute within constitutional bounds.

The government makes yet another argument that troubles me. It suggests
that the concerns expressed by the plaintiffs and the questions posed by the
court reflect an exaggerated supposition of how it would apply the law, and that
we should, in effect, trust the Department of Justice to limit the CDA's
application in a reasonable fashion that would avoid prosecution for placing on
the Internet works of serious literary or artistic merit. That would require a
broad trust indeed from a generation of judges not far removed from the attacks
on James Joyce's Ulysses as obscene. See United States v. One Book Entitled
Ulysses, 72 F.2d 705 (2d Cir. 1934); see also Book Named "John Cleland's
Memoirs of a Woman of Pleasure" v. Attorney General of Mass., 383 U.S. 413
(1966). Even if we were to place confidence in the reasonable judgment of the
representatives of the Department of Justice who appeared before us, the
Department is not a monolithic structure, and individual U.S. Attorneys in the
various districts of the country have or appear to exercise some independence,
as reflected by the Department's tolerance of duplicative challenges in this
very case.

But the bottom line is that the First Amendment should not be interpreted to
require us to entrust the protection it affords to the judgment of prosecutors.
Prosecutors come and go. Even federal judges are limited to life tenure. The
First Amendment remains to give protection to future generations as well. I
have no hesitancy in concluding that it is likely that plaintiffs will prevail
on the merits of their argument that the challenged provisions of the CDA are
facially invalid under both the First and Fifth Amendments.

BUCKWALTER, District Judge

A.

I believe that plaintiffs should prevail in this litigation.

My conclusion differs in part from my original memorandum filed in
conjunction with the request for a Temporary Restraining Order. As part of the
expedited review (per § 561 of the CDA), and in contrast to the limited
documentation available to me at the time of the T.R.O. hearing, we have now
gathered voluminous evidence presented by way of sworn declarations, live
testimony, demonstrative evidence, and other exhibits.(1) Based upon our
findings of fact derived from careful consideration of that evidence, I now
conclude that this statute is overbroad and does not meet the strict scrutiny
standard in Sable Communications of California, Inc. v. FCC, 492 U.S. 115
(1989).

More specifically, I now find that current technology is inadequate to
provide a safe harbor to most speakers on the Internet. On this issue, I concur
in Chief Judge Sloviter's opinion. In addition, I continue to believe that the
word "indecent" is unconstitutionally vague, and I find that the terms
"in context" and "patently offensive" also are so vague as
to violate the First and Fifth Amendments.

It is, of course, correct that statutes that attempt to regulate the content
of speech presumptively violate the First Amendment. See e.g. R.A.V. v.
City of Saint Paul, 505 U.S. 377, 381 (1992). That is as it should be. The
prohibition against Government's regulation of speech cannot be set forth any
clearer than in the language of the First Amendment itself. I suspect, however,
that it may come as a surprise to many people who have not followed the
evolution of constitutional law that, by implication at least, the First
Amendment provides that Congress shall make no law abridging the freedom of
speech unless that law advances a compelling governmental interest.(2)
Our cherished freedom of speech does not cover as broad a spectrum as one may
have gleaned from a simple reading of the Amendment.(3)

First Amendment jurisprudence has developed into a study of intertwining
standards and applications, perhaps as a necessary response to our ever-evolving
culture and modes of communication.(4)

Essentially, my concerns are these: above all, I believe that the
challenged provisions are so vague as to violate both the First and Fifth
Amendments, and in particular that Congress' reliance on Pacifica is misplaced.
In addition, I believe that technology as it currently exists -- and it bears
repeating that we are at the preliminary injunction phase only -- cannot provide
a safe harbor for most speakers on the Internet, thus rendering the statute
unconstitutional under a strict scrutiny analysis. I refer to Chief Judge
Sloviter's more detailed analysis of this issue.

While I believe that our findings of fact clearly show that as yet no
defense is technologically feasible, and while I also have found the present Act
to be unconstitutionally vague, I believe it is too early in the development of
this new medium to conclude that other attempts to regulate protected speech
within the medium will fail a challenge. That is to say that I specifically do
not find that any and all statutory regulation of protected speech on the
Internet could not survive constitutional scrutiny. Prior cases have
established that government regulation to prevent access by minors to speech
protected for adults, even in media considered the vanguard of our First
Amendment protections, like print, may withstand a constitutional challenge.
See e.g. Ginsberg v. New York, 390 U.S. 629, 635 (1968) ("`Material
which is protected for distribution to adults is not necessarily
constitutionally protected from restriction upon its dissemination to children.'")
(quoting Bookcase Inc. v. Broderick, 18 N.Y.2d 71, 75, 271 N.Y.S.2d 947, 952,
218 N.E.2d 668, 671 (1966), appeal dismissed, sub nom Bookcase, Inc. v.
Leary, 385 U.S. 12 (1966)). It should be noted that those restrictions that
have been found constitutional were sensitive to the unique qualities of the
medium at which the restriction was aimed.

B.

This statute, all parties agree, deals with protected speech, the
preservation of which has been extolled by court after court in case after case
as the keystone, the bulwark, the very heart of our democracy. What is more, the
CDA attempts to regulate protected speech through criminal sanctions, thus
implicating not only the First but also the Fifth Amendment of our Constitution.
The concept of due process is every bit as important to our form of government
as is free speech. If free speech is at the heart of our democracy, then surely
due process is the very lifeblood of our body politic; for without it, democracy
could not survive. Distilled to its essence, due process is, of course, nothing
more and nothing less than fair play. If our citizens cannot rely on fair play
in their relationship with their government, the stature of our government as a
shining example of democracy would be greatly diminished. I believe that an
exacting or strict scrutiny of a statute which attempts to criminalize protected
speech requires a word by word look at that statute to be sure that it clearly
sets forth as precisely as possible what constitutes a violation of the statute.

The reason for such an examination is obvious. If the Government is going
to intrude upon the sacred ground of the First Amendment and tell its citizens
that their exercise of protected speech could land them in jail, the law
imposing such a penalty must clearly define the prohibited speech not only for
the potential offender but also for the potential enforcer. Kolender, 461 U.S.
352; Hoffman Estates, 455 U.S. 489; Smith v. Goguen, 415 U.S. 566 (1974);
Grayned v. City of Rockford, 408 U.S. 104 (1972); Winters v. New York, 333 U.S.
507 (1948).

In dealing with issues of vagueness and due process over the years, the
Supreme Court has enunciated many notable principles. One concern with vague
laws relates to the issue of notice. The older cases have used phrases such as
"a statute which either forbids or requires the doing of an act in terms so
vague that men of common intelligence must necessarily guess at its meaning and
differ as to its application violates the first essential of due process of law,"
Connally v. General Const. Co., 269 U.S. 385, 391 (1926) (citations omitted); "it
will not do to hold an average man to the peril of indictment for the unwise
exercise of his . . . knowledge involving so many factors of varying effect that
neither the person to decide in advance nor the jury to try him after the fact
can safely and certainly judge the result," Cline v. Frink Dairy Co., 274
U.S. 445, 465 (1927); and "[n]o one may be required at peril of life,
liberty or property to speculate as to the meaning of penal statutes. All are
entitled to be informed as to what the State commands or forbids," Lanzetta
v. New Jersey, 306 U.S. 451, 453 (1939). Second, the Court has said that laws
must provide precise standards for those who apply them to prevent arbitrary and
discriminatory enforcement, because "[w]hen the legislature fails to
provide such minimal guidelines, a criminal statute may permit `a standardless
sweep [that] allows policemen, prosecutors, and juries to pursue their personal
predilections.'" Kolender, 461 U.S. at 358 (citing Goguen, 415 U.S. at
575). Finally, when First Amendment concerns have been implicated, a stricter
standard of examination for vagueness is imperative. "[T]his court has
intimated that stricter standards of permissible statutory vagueness may be
applied to a statute having a potentially inhibiting effect on speech; a man may
the less be required to act at his peril here, because the free dissemination of
ideas may be the loser." Smith v. California, 361 U.S. 147, 151 (1959).
See also Hoffman Estates, 455 U.S. at 499 ("[P]erhaps the most
important factor affecting the clarity that the Constitution demands of a law is
whether it threatens to inhibit the exercise of constitutionally protected
rights. If, for example, the law interferes with the right of free speech . . .
, a more stringent vagueness test should apply.") (citations omitted).

A case which sums up vagueness as it relates to due process as succinctly as
any other is Grayned v. City of Rockford. Here the court said:

It is a basic principle of due process that an enactment is void for
vagueness if its prohibitions are not clearly defined. Vague laws offend
several important values. First, because we assume that man is free to steer
between lawful and unlawful conduct, we insist that laws give the person of
ordinary intelligence a reasonable opportunity to know what is prohibited, so
that he may act accordingly. Vague laws may trap the innocent by not providing
fair warning. Second, if arbitrary and discriminatory enforcement is to be
prevented, laws must provide explicit standards for those who apply them. A
vague law impermissibly delegates basic policy matters to policemen, judges, and
juries for resolution on an ad hoc and subjective basis, with the
attendant dangers of arbitrary and discriminatory application. Third, but
related, where a vague statute "abut[s] upon sensitive areas of basic First
Amendment freedoms," it "operates to inhibit the exercise of [those]
freedoms." Uncertain meanings inevitably lead citizens to "'steer far
wider of the unlawful zone' . . . than if the boundaries of the forbidden areas
were clearly marked."

Grayned, 408 U.S. at 108-109 (citations omitted).

At the same time, in considering the vagueness issue, as the Government
correctly points out, "[C]ondemned to the use of words, we can never expect
mathematical certainty from our language." Grayned, 408 U.S. at 110. See
also Hoffman Estates, 455 U.S. 489; Hynes v. Mayor & Council of Oradell,
425 U.S. 610 (1976); Goguen, 415 U.S. 566. In addition, it will always be true
that the fertile legal "imagination can conjure hypothetical cases in which
the meaning of [disputed] terms will be in nice question." American
Communications Assn. v. Douds, 339 U.S. 382, 412 (1950). Thus, as I considered
the vagueness issue I have kept in mind the observation of Justice Holmes,
denying a challenge to vagueness in Nash v. United States, 229 U.S. 373 (1913).
To Justice Holmes, "the law is full of instances where a man's fate depends
on his estimating rightly, that is, as the jury subsequently estimates it, some
matter of degree. If his judgment is wrong, not only may he incur a fine or a
short imprisonment . . ., he may incur the penalty of death." Nash, 229
U.S. at 377. Even more recently the court has stated that "due process
does not require `impossible standards' of clarity." Kolender, 461 U.S. at
361, (quoting United States v. Petrillo, 332 U.S. 1, 7-8 (1947)). It is with
all of these principles in mind, as they interplay with the unique features of
the Internet, that I have reached my conclusion.

The fundamental constitutional principle that concerns me is one of simple
fairness, and that is absent in the CDA. The Government initially argues that "indecent"
in this statute is the same as "patently offensive." I do not agree
that a facial reading of this statute supports that conclusion. The CDA does
not define the term "indecent," and the FCC has not promulgated
regulations defining indecency in the medium of cyberspace. If "indecent"
and "patently offensive" were intended to have the same meaning,
surely section (a) could have mirrored section (d)'s language.(5) Indecent in
this statute is an undefined word which, standing alone, offers no guidelines
whatsoever as to its parameters. Interestingly, another federal crime gives a
definition to indecent entirely different from that proposed in the present
case.(6) While not applicable here, this example shows the indeterminate nature
of the word and the need for clear definition, particularly in a statute which
infringes upon protected speech. Although the use of different terms in §
223(a) and (d) suggests that Congress intended that the terms have different
meanings, the Conference Report indicates an intention to treat § 223(a) as
containing the same language as § 223(d). Conf. Rep. at 188-89 ("The
conferees intend that the term indecency . . . has the same meaning as
established in FCC v. Pacifica Foundation, 438 U.S. 726 (1978) and [Sable] and "New
section 223(d)(1) codifies the definition of indecency from [Pacifica] . . . .
The precise contours of the definition of indecency have varied . . . . The
essence of the phrase -- patently offensive descriptions of sexual and excretory
activities -- has remained constant, however."). Therefore, I will
acknowledge that the term indecency is "reasonably susceptible" to the
definition offered in the Conference Report and might therefore adopt such a
narrowing construction if it would thereby preserve the constitutionality of the
statute. See Virginia v. American Booksellers Association, 484 U.S.
383, 397 (1988); Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975).
Accepting these terms as synonymous, however, provides no greater help to a
speaker attempting to comply with the CDA. Contrary to the Government's
suggestion, Pacifica does not answer the question of whether the terms pass
constitutional muster in the present case. In Pacifica, the Court did not
consider a vagueness challenge to the term "indecent," but considered
only whether the Government had the authority to regulate the particular
broadcast at issue -- George Carlin's Monologue entitled "Filthy Words."
In finding in the affirmative, the Court emphasized that its narrow holding
applied only to broadcasting, which is "uniquely accessible to children,
even those too young to read." 438 U.S. at 749. Thus, while the Court
sanctioned the FCC's time restrictions on a radio program that repeatedly used
vulgar language, the Supreme Court did not hold that use of the term "indecent"
in a statute applied to other media, particularly a criminal statute, would be
on safe constitutional ground.

The Supreme Court more recently had occasion to consider a statute banning "indecent"
material in the dial-a-porn context in Sable, 492 U.S. 115, and found that a
complete ban on such programming violated the First Amendment because it was not
narrowly tailored to serve the purpose of limiting children's access to
commercial pornographic telephone messages. Once again, the Court did not
consider a challenge to the term "indecent" on vagueness grounds, and
indeed has never directly ruled on this issue.

Several other courts have, however, upheld the use of the term in statutes
regulating different media. For example, in Information Providers' Coalition v.
FCC, 928 F.2d 866 (9th Cir. 1991), the Ninth Circuit Court of Appeals considered
whether the term "indecent" in the 1989 Amendment to the
Communications Act regulating access to telephone dial-a-porn services and the
FCC's implementing regulations was void for vagueness. The FCC had defined "indecent"
as "the description or depiction of sexual or excretory activities or
organs in a patently offensive manner as measured by contemporary community
standards for the telephone medium." 928 F.2d at 874. Although
recognizing that the Supreme Court had never explicitly ruled on a vagueness
challenge to the term, the court read Sable and Pacifica as having implicitly
accepted the use of this definition of "indecent." The court further
stated that the FCC's definition of "indecent" was no less imprecise
than was the definition of "obscenity" as announced in Miller v.
California, 413 U.S. 15, 25 (1973), and thus concluded that "indecent"
as pertained to dial-a-porn regulations must survive a vagueness challenge.
See also Dial Information Services v. Thornburgh, 938 F.2d 1535 (2d Cir.
1991), (upholding the use of "indecent" in the same amendment to the
Communications Act and FCC regulations.); Action for Children's Television v.
FCC, 932 F.2d 1504, 1508 (D.C.Cir. 1991) (rejecting vagueness challenge to "indecency"
provision in broadcast television regulations).(7)

Notably, however, in these telephone and cable television cases the FCC had
defined indecent as patently offensive by reference to contemporary community
standards for that particular medium. See, e.g., Pacifica, 438 U.S. at
732 (defining "indecent" by reference to terms "patently
offensive as measured by contemporary community standards for the broadcast
medium"); Dial Information Services, 938 F.2d at 1540 (defining indecency
by reference to contemporary community standards for the telephone medium).
Here, the provision is not so limited. In fact, there is no effort to conform
the restricting terms to the medium of cyberspace, as is required under Pacifica
and its progeny.

The Government attempts to save the "indecency" and "patently
offensive" provisions by claiming that the provisions would only be used to
prosecute pornographic works which, when considered "in context" as
the statute requires, would be considered "indecent" or "patently
offensive" in any community. The Government thus contends that plaintiffs'
fears of prosecution for publishing material about matters of health, art,
literature or civil liberties are exaggerated and unjustified. The Government's
argument raises two issues: first is the question of which "community
standards" apply in cyberspace, under the CDA; and second is the
proposition that citizens should simply rely upon prosecutors to apply the
statute constitutionally.

Are the contemporary community standards to be applied those of the vast
world of cyberspace, in accordance with the Act's apparent intent to establish a
uniform national standard of content regulation? The Government offered no
evidence of any such national standard or nationwide consensus as to what would
be considered "patently offensive". On the contrary, in supporting
the use of the term "indecent" in the CDA, the Government suggests
that, in part, this term was chosen as a means of insulating children from
material not restricted under current obscenity laws. This additional term is
necessary, the Government states, because "whether something rises to the
level of obscene is a legal conclusion that, by definition, may vary from
community to community." Govt. Brief at 31. In support of its argument,
the Government points to the Second Circuit's decision in United States v.
Various Articles of Obscene Merchandise, Schedule No. 2102, 709 F.2d 132, 134,
137 (2d Cir. 1983), which upheld the district court's conclusion that "detailed
portrayals of genitalia, sexual intercourse, fellatio, and masturbation"
including the film "Deep Throat" and other pornographic films and
magazines, are not obscene in light of the community standards prevailing in New
York City." What this argument indicates is that as interpretations of
obscenity ebb and flow throughout various communities, restrictions on indecent
material are meant to cover a greater or lesser quantity of material not reached
by each community's obscenity standard. It follows that to do this, what
constitutes indecency must be as open to fluctuation as the obscenity standard
and cannot be rigidly constructed as a single national standard if it is meant
to function as the Government has suggested. As Justice Scalia stated, "[t]he
more narrow the understanding of what is `obscene,' . . . the more pornographic
what is embraced within the residual category of `indecency.'" Sable, 492
U.S. at 132 (Scalia, J. concurring). This understanding is consistent with the
case law, in which the Supreme Court has explained that the relevant community
is the one where the information is accessed and where the local jury sits.
See Sable, 492 U.S. at 125; Hamling v. United States, 418 U.S. 87
(1974); Miller, 413 U.S. at 30 ("[O]ur nation is simply too big and too
diverse for this Court to reasonably expect that such standards [of what is
patently offensive] could be articulated for all 50 states in a single
formulation."). However, the Conference Report with regard to the CDA
states that the Act is "intended to establish a uniform national standard
of content regulation." Conf. Rep. at 191. This conflict inevitably
leaves the reader of the CDA unable to discern the relevant "community
standard," and will undoubtedly cause Internet users to "steer far
wider of the unlawful zone" than if the community standard to be applied
were clearly defined. The chilling effect on the Internet users' exercise of
free speech is obvious. See Baggett v. Bullitt, 377 U.S. 360, 372
(1964). This is precisely the vice of vagueness.

In addition, the Government's argument that the challenged provisions will
be applied only to "pornographic" materials, and will not be applied
to works with serious value is without support in the CDA itself. Unlike in the
obscenity context, indecency has not been defined to exclude works of serious
literary, artistic, political or scientific value, and therefore the
Government's suggestion that it will not be used to prosecute publishers of such
material is without foundation in the law itself. The Government's claim that
the work must be considered patently offensive "in context" does
nothing to clarify the provision, for it fails to explain which context is
relevant. "Context" may refer to, among other things, the nature of
the communication as a whole, the time of day it was conveyed, the medium used,
the identity of the speaker, or whether or not it is accompanied by appropriate
warnings. See e.g., Pacifica, 438 U.S. at 741 n.16, n.17 (referring to "the
context of the whole book," and to the unique interpretation of the First
Amendment "in the broadcasting context").

The thrust of the Government's argument is that the court should trust
prosecutors to prosecute only a small segment of those speakers subject to the
CDA's restrictions, and whose works would reasonably be considered "patently
offensive" in every community. Such unfettered discretion to prosecutors,
however, is precisely what due process does not allow. "It will not do to
say that a prosecutor's sense of fairness and the Constitution would prevent a
successful . . . prosecution for some of the activities seemingly embraced
within the sweeping statutory definitions. The hazard of being prosecuted . . .
nevertheless remains . . . . Well-intentioned prosecutors and judicial
safeguards do not neutralize the vice of a vague law." Baggett, 377 U.S.
at 373-74; see also Keyishian v. Board of Regents, 385 U.S. 589, 599
(1967)("[i]t is no answer" to a vague law for the Government "to
say that the statute would not be applied in such a case."). And we cannot
overlook the vagaries of politics. What may be, figuratively speaking, one
administration's pen may be another's sword.

The evidence and arguments presented by the Government illustrate the
possibility of arbitrary enforcement of the Act. For example, one Government
expert opined that any of the so-called "seven dirty words" used in
the Carlin monologue would be subject to the CDA and therefore should be "tagged,"
as should paintings of nudes displayed on a museum's web site. The Government
has suggested in its brief, however, that the Act should not be so applied.
See Govt. Brief at 37 (suggesting that "seven dirty words" if
used "in the context of serious discussions"would not be
subject to the Act). Even Government counsel was unable to define "indecency"
with specificity. The Justice Department attorney could not respond to numerous
questions from the court regarding whether, for example, artistic photographs of
a nude man with an erect penis, depictions of Indian statues portraying
different methods of copulation, or the transcript of a scene from a
contemporary play about AIDS could be considered "indecent" under the
Act.

Plaintiffs also argue that section 223(e)(5)(A) of the CDA, offering a
defense for speakers who take "good faith, reasonable, effective and
appropriate actions under the circumstances to restrict or prevent access by
minors to a communication" covered by the Act, is unconstitutionally vague
because it fails to specify what would constitute an effective defense to
prosecution. The plain language of the safe harbor provision indicates an
effort to ensure that the statute limits speech in the least restrictive means
possible by taking into account emerging technologies in allowing for any and
all "reasonable, effective and appropriate" approaches to restricting
minors' access to the proscribed material. But, the statute itself does not
contain any description of what, other than credit card verification and adult
identification codes -- which we have established remain unavailable to most
content providers -- will protect a speaker from prosecution. Significantly,
although the FCC is authorized to specify measures that might satisfy this
defense, the FCC's views will not be definitive but will only "be admitted
as evidence of good faith efforts" that the defendant has met the
requirements of the defense. 47 U.S.C. § 223(e)(6). Thus, individuals
attempting to comply with the statute presently have no clear indication of what
actions will ensure that they will be insulated from criminal sanctions under
the CDA.

C.

The consequences of posting indecent content are severe.(8) I recognize
that people must make judgments each and every day, many times in the most
intimate of relationships and that an error in judgment can have serious
consequences. It is also true that where those consequences involve penal
sanctions, a criminal law or statute has more often than not carefully defined
the proscribed conduct. It is not so much that the accused needs these precise
definitions, as it has been said he or she rarely reads the law in advance.
What is more important is that the enforcer of statutes must be guided by clear
and precise standards. In statutes that break into relatively new areas, such
as this one, the need for definition of terms is greater, because even commonly
understood terms may have different connotations or parameters in this new
context.(9) Words cannot define conduct with mathematical certainty, and
lawyers, like the bright and intelligent ones now before us, will most certainly
continue to devise ways by which to challenge them. This rationale, however,
can neither support a finding of constitutionality nor relieve legislators from
the very difficult task of carefully drafting legislation tailored to its goal
and sensitive to the unique characteristics of, in this instance, cyberspace.

DALZELL, District Judge

A. Introduction

I begin with first principles: As a general rule, the Constitution forbids
the Government from silencing speakers because of their particular message.
R.A.V. v. City of Saint Paul, 112 S. Ct. 2538, 2542 (1992). "Our political
system and cultural life rest upon this ideal." Turner Broadcasting Sys.
v. FCC, 114 S. Ct. 2445, 2458 (1994). This general rule is subject only to "narrow
and well-understood exceptions". Id. A law that, as here, regulates
speech on the basis of its content, is "presumptively invalid".
R.A.V., 112 S. Ct. at 2542.

Two of the exceptions to this general rule deal with obscenity (commonly
understood to include so-called hardcore pornography), Miller v. California, 413
U.S. 15 (1973), and child pornography, New York v. Ferber, 458 U.S. 747 (1982).
The Government can and does punish with criminal sanction people who engage in
these forms of speech. 18 U.S.C. §§ 1464-65 (criminalizing obscene
material); id. §§ 2251-52 (criminalizing child pornography). Indeed,
the Government could punish these forms of speech on the Internet even without
the CDA. E.g., United States v. Thomas, 74 F.3d 701, 704-05 (6th Cir. 1995)
(affirming obscenity convictions for the operation of a computer bulletin
board).

The Government could also completely ban obscenity and child pornography
from the Internet. No Internet speaker has a right to engage in these forms of
speech, and no Internet listener has a right to receive them. Child pornography
and obscenity have "no constitutional protection, and the government may
ban [them] outright in certain media, or in all." Alliance for Community
Media v. FCC, 56 F.3d 105, 112 (D.C. Cir. 1995) (citing R.A.V., 112 S. Ct. at
2545), cert. granted sub nom. Denver Area Educ. Telecommunications Consortium,
116 S. Ct. 471 (1996); see also Ferber, 458 U.S. at 756. As R.A.V. notes, "'the
freedom of speech' referred to by the First Amendment does not include a freedom
to disregard these traditional limitations." R.A.V., 112 S. Ct. at 2543.

The cases before us, however, are not about obscenity or child pornography.
Plaintiffs in these actions claim no right to engage in these forms of speech in
the future, nor does the Government intimate that plaintiffs have engaged in
these forms of speech in the past.

This case is about "indecency", as that word has come to be
understood since the Supreme Court's decisions in FCC v. Pacifica Foundation,
438 U.S. 726 (1976), and Sable Communications v. FCC, 492 U.S. 115 (1989). The
legal difficulties in these actions arise because of the special place that
indecency occupies in the Supreme Court's First Amendment jurisprudence. While
adults have a First Amendment right to engage in indecent speech, Sable, 492
U.S. at 126; see also Pacifica, 438 U.S. at 747-48, the Supreme Court has also
held that the Government may, consistent with the Constitution, regulate
indecency on radio and television, and in the "dial-a-porn" context,
as long as the regulation does not operate as a complete ban. Thus, any
regulation of indecency in these areas must give adults access to indecent
speech, which is their right.

The Government may only regulate indecent speech for a compelling reason,
and in the least restrictive manner. Sable, 492 U.S. at 126. "It is not
enough to show that the Government's ends are compelling; the means must be
carefully tailored to achieve those ends." Id. This "most exacting
scrutiny", Turner, 114 S. Ct. at 2459, requires the Government to "demonstrate
that the recited harms are real, not merely conjectural, and that the regulation
will in fact alleviate these harms in a direct and material way." United
States v. National Treasury Employees Union, 115 S. Ct. 1003, 1017 (1995)
(citing Turner, 114 S. Ct. at 1017). Thus, although our analysis here must
balance ends and means, the scales tip at the outset in plaintiffs' favor. This
is so because "[r]egulations which permit the Government to discriminate on
the basis of the content of the message cannot be tolerated under the First
Amendment." Simon & Schuster, Inc. v. Members of the New York State
Crime Victims Board, 502 U.S. 105, 116 (1991) (citation omitted).

The Government argues that this case is really about pornography on the
Internet. Apart from hardcore and child pornography, however, the word
pornography does not have a fixed legal meaning. When I use the word
pornography in my analysis below, I refer to for-profit purveyors of sexually
explicit, "adult" material similar to that at issue in Sable. See 492
U.S. at 118. Pornography is normally either obscene or indecent, as Justice
Scalia noted in his concurrence in Sable. Id. at 132. I would avoid using such
an imprecise (and overbroad) word, but I feel compelled to do so here, since
Congress undoubtedly had such material in mind when it passed the CDA. See S.
Rep. No. 230, 104th Cong., 2d Sess. 187-91 (1996), reprinted in 1996
U.S.C.C.A.N. 10, 200-05 [hereinafter Senate Report]. Moreover, the Government
has defended the Act before this court by arguing that the Act could be
constitutionally applied to such material.

Plaintiffs have, as noted, moved for a preliminary injunction. The
standards for such relief are well-settled. Plaintiffs seeking preliminary
injunctive relief must show (1) "[a] reasonable probability of eventual
success in the litigation" and (2) "irreparabl[e] injur[y] pendente
lite" if relief is not granted. Acierno v. New Castle County, 40 F.2d 645,
653 (3d Cir. 1994). We must also consider, if appropriate, (3) "the
possibility of harm to other interested persons from the grant or denial of the
injunction", and (4) "the public interest". Id.; see also
Opticians Ass'n v. Independent Opticians, 920 F.2d 187, 192 (3d Cir. 1990).

In a First Amendment challenge, a plaintiff who meets the first prong of the
test for a preliminary injunction will almost certainly meet the second, since
irreparable injury normally arises out of the deprivation of speech rights, "for
even minimal periods of time". Elrod v. Burns, 427 U.S. 347, 373-74
(1976); Hohe v. Casey, 868 F.2d 69, 72 (3d Cir.), cert. denied, 493 U.S. 848
(1989). Of course, neither the Government nor the public generally can claim an
interest in the enforcement of an unconstitutional law. Thus, I focus my legal
analysis today primarily on whether plaintiffs have shown a likelihood of
success on their claim that the CDA is unconstitutional. The issues of
irreparable harm to plaintiffs, harm to third parties, and the public interest
all flow from that determination.(1)

Plaintiffs' challenge here is a "facial" one. A law that
regulates the content of speech is facially invalid if it does not pass the "most
exacting scrutiny" that we have described above, or if it would "penalize
a substantial amount of speech that is constitutionally protected".
Forsyth County v. Nationalist Movement, 112 S. Ct. 2395, 2401 (1992). This is
so even if some applications would be "constitutionally unobjectionable".
Id.; see also National Treasury Employees Union v. United States, 990 F.2d
1271, 1279-80 (D.C. Cir. 1993) (Randolph, J., concurring), aff'd, 115 S. Ct.
1003 (1995). Sometimes facial challenges require an inquiry into a party's "standing"
(i.e., whether a party may properly challenge a law as facially invalid). See,
e.g., Ferber, 458 U.S. at 767-79. At other times a facial challenge requires
only an inquiry into the law's reach. See, e.g., R.A.V., 112 S. Ct. at 2547.(2)
As I describe it in part C below, I have no question that plaintiffs here have
standing to challenge the validity of the CDA, and, indeed, the Government has
not seriously challenged plaintiffs' standing to do so. See, e.g., Virginia v.
American Booksellers Assoc., 484 U.S. 383, 392 (1988). Thus, the focus is
squarely on the merits of plaintiffs' facial challenge.(3)

I divide my legal analysis below into three parts. In Part B, I examine the
traditional definition of indecency and relate it to the provisions of the CDA
at issue in this action. From this analysis I conclude that § 223(a) and §
223(d) of the CDA reach the same kind of speech. My analysis also convinces me
that plaintiffs are unlikely to succeed in their claim that the CDA is
unconstitutionally vague. In Part C, I address the Government's argument that
plaintiffs are not the CDA's target, nor would they likely face prosecution
under the Act. Here, I conclude that plaintiffs could reasonably fear
prosecution under the Act, even if some of their fears border on the farfetched.
In Part D, I consider the legal implications of the special attributes of
Internet communication, as well as the effect that the CDA would have on these
attributes. In this Part I conclude that the disruptive effect of the CDA on
Internet communication, as well as the CDA's broad reach into protected speech,
not only render the Act unconstitutional but also would render unconstitutional
any regulation of protected speech on this new medium.

In Alliance for Community Media, 56 F.3d at 123-25, for example, the
District of Columbia Court of Appeals addressed prohibitions on indecent
programming on certain cable television channels. That court noted that the FCC
has codified the meaning of "'indecent' programming" on cable
television as "programming that describes or depicts sexual or excretory
activities or organs in a patently offensive manner as measured by contemporary
community standards for the cable medium." Id. at 112 (citing what is now
47 C.F.R. § 76.701(g)).

The FCC took a similar approach to the definition of "indecency"
in the "dial-a-porn" medium.(4) In Dial Information Services, 938
F.2d at 1540, the Second Circuit quoted the FCC's definition of indecent
telephone communications in that context:

[I]n the dial-a-porn context, we believe it is appropriate to define
indecency as the description or depiction of sexual or excretory activities or
organs in a patently offensive manner as measured by contemporary community
standards for the telephone medium.

These three cases recognize that the FCC did not define "indecency"
for cable and dial-a-porn in a vacuum. Rather, it borrowed from the Supreme
Court's decision in FCC v. Pacifica Foundation, 438 U.S. 726 (1978). In that
case (which I describe in greater detail below), the Supreme Court established
the rough outline from which the FCC fashioned its three-part definition. For
the first two parts of the test, the Supreme Court emphasized the "importance
of context" in examining arguably indecent material. Id. at 747 n.25. "Context"
in the Pacifica opinion includes consideration of both the particular medium
from which the material originates and the particular community that receives
the material. Id. at 746 (assuming that the Carlin monologue "would be
protected in other contexts"); id. at 748-51 (discussing the attributes of
broadcast); see also Information Providers' Coalition, 928 F.2d at 876
(discussing the "content/context dichotomy"). Second, the opinion
limits its discussion to "patently offensive sexual and excretory language",
Pacifica, 438 U.S. at 747, and this type of content has remained the FCC's
touchstone. See, e.g., Alliance for Community Media, 56 F.3d at 112.(5)

We have quoted from the CDA extensively above and I will only briefly
rehearse that discussion here. Section 223(a) of the CDA criminalizes "indecent"
speech on the Internet. This is the "indecency" provision. Section
223(d) of the CDA addresses speech that, "in context, depicts or describes,
in terms patently offensive as measured by contemporary community standards,
sexual or excretory activities or organs". This is the "patently
offensive" provision. The foregoing discussion leads me to conclude that
these two provisions describe the same kind of speech. That is, the use of "indecent"
in § 223(a) is shorthand for the longer description in § 223(d).
Conversely, the longer description in § 223(d) is itself the definition of "indecent"
speech. I believe Congress could have used the word "indecent" in
both § 223(a) and § 223(d), or it could have used the "patently
offensive" description of § 223(d) in § 223(a), without a change
in the meaning of the Act. I do not believe that Congress intended that this
distinction alone would change the reach of either section of the CDA.(6)

The CDA's legislative history confirms this conclusion. There, the
conference committee explicitly noted that § 223(d) "codifies the
definition of indecency from FCC v. Pacifica Foundation, 438 U.S. 726 (1978). .
. . The conferees intend that the term indecency (and the rendition of the
definition of that term in new section 502) has the same meaning as established
in FCC v. Pacifica Foundation, 438 U.S. 726 (1978) and Sable Communications of
California, Inc. v. FCC, 492 U.S. 115 (1989)." Senate Report at 188,
reprinted in 1996 U.S.C.C.A.N. at 201-02. The legislative history makes clear
that Congress did not intend to create a distinction in meaning when it used the
generic term "indecency" in § 223(a) and the definition of that
term in § 223(d).(7)

There is no doubt that the CDA requires the most stringent review for
vagueness, since it is a criminal statute that "threatens to inhibit the
exercise of constitutionally protected rights". Colautti v. Franklin, 439
U.S 379, 391 (1979); see also Kolender v. Lawson, 461 U.S. 352, 358 n.8 (1983);
Grayned, 408 U.S. at 108-09. My analysis here nevertheless leads ineluctably to
the conclusion that the definition of indecency is not unconstitutionally vague.
The Miller definition of obscenity has survived such challenges, see, e.g.,
Hamling v. United States, 418 U.S. 87, 118-19 (1974); Fort Wayne Books, Inc. v.
Indiana, 489 U.S. 46, 57 (1989), and the definition of indecency contains a
subset of the elements of obscenity. If the Miller test "give[s] the
person of ordinary intelligence a reasonable opportunity to know what is
prohibited, so that he may act accordingly", Grayned v. City of Rockford,
408 U.S. 104, 108 (1972), the omission of parts of that test does not warrant a
contrary conclusion. See Dial Information Services, 938 F.2d at 1541-42.
Similarly, since the definition of indecency arose from the Supreme Court itself
in Pacifica, we may fairly imply that the Court did not believe its own
interpretation to invite "arbitrary and discriminatory enforcement" or
"abut upon sensitive areas of basic First Amendment freedoms".
Grayned, 408 U.S. at 108-109 (citations and alterations omitted). Sable, while
not explicitly addressing the issue of vagueness, reinforces this conclusion.
See Information Providers' Coalition, 928 F.2d at 875-76 (citing Sable, 492 U.S.
at 126-27). It follows, then, that plaintiffs' vagueness challenge is not
likely to succeed on the merits and does not support preliminary injunctive
relief.

The possible interpretations of the defenses in § 223(e) do not alter
this conclusion. As a matter of statutory construction, § 223(e)(5)(B)
could not be clearer. This section, which imports the dial-a-porn defenses into
the CDA, creates "specific and objective" methods to avoid liability.
See Roberts v. United States Jaycees, 468 U.S. 609, 629 (1984). Section
223(e)(5)(A) is more suspect, since it arguably "fail[s] to describe with
sufficient particularity what a suspect must do in order to satisfy" it.
Kolender 461 U.S. at 361.(8) Yet even though the defenses in both sections are
unavailable to many Internet users, their unavailability does not render the
liability provisions vague. Rather, their unavailability just transforms §
223(a) and § 223(d) into a total ban, in violation of Butler v. Michigan,
352 U.S. 380, 383 (1957), and Sable, 492 U.S. at 127, 131. I am sensitive to
plaintiffs' arguments that the statute, as written, does not create safe harbors
through which all Internet users may shield themselves from liability.
Transcript of May 10, 1996, at 37-38. Here again, however, the absence of safe
harbors relates to the (over)breadth of a statute, and not its vagueness. See
Sable, 492 U.S. at 127, 131.

C. Plaintiffs' Likelihood of Prosecution Under the Act

The Government has consistently argued that the speech of many of the
plaintiffs here is almost certainly not indecent. They point, for example, to
the educational and political content of plaintiffs' speech, and they also
suggest that the occasional curse word in a card catalogue will probably not
result in prosecution. See Senate Report at 189, reprinted in 1996 U.S.C.C.A.N.
at 203 ("Material with serious redeeming value is quite obviously intended
to edify and educate, not to offend."). In this section I address that
argument.

I agree with the Government that some of plaintiffs' claims are somewhat
exaggerated, but hyperbolic claims do not in themselves weigh in the
Government's favor. In recent First Amendment challenges, the Supreme Court has
itself paid close attention to extreme applications of content-based laws.

In Simon & Schuster, Inc. v. Members of the New York State Crimes Victim
Board, 502 U.S. 105 (1991), the Court addressed the constitutionality of a law
that required criminals to turn over to their victims any income derived from
books, movies, or other commercial exploitation of their crimes. Id. at 504-05.
In its opinion, the Court evaluated the argument of an amicus curiae that the
law's reach could include books such as The Autobiography of Malcolm X, Civil
Disobedience, and Confessions of Saint Augustine, and authors such as Emma
Goldman, Martin Luther King, Jr., Sir Walter Raleigh, Jesse Jackson, and
Bertrand Russell. Id. at 121-22. The Court credited the argument even while
recognizing that it was laced with "hyperbole":

The argument that [the] statute . . . would prevent publication of all of
these works is hyperbole -- some would have been written without compensation --
but the . . . law clearly reaches a wide range of literature that does not
enable a criminal to profit from his crime while a victim remains uncompensated.

Id. at 122. If a content-based law "can produce such an outcome",
id. at 123 (emphasis added), then Simon & Schuster allows us to consider
those outcomes in our analysis.

Even more recently, in United States v. National Treasury Employees Union,
115 S. Ct. 1003 (1995), the Court addressed the constitutionality of a law that
banned federal employees from accepting honoraria for publications unrelated to
their work. Id. at 1008. The Court noted that the law would reach "literary
giants like Nathaniel Hawthorne and Herman Melville, . . . Walt Whitman, . . .
and Bret Harte". Id. at 1012. This concern resurfaced later in the
opinion, see id. at 1015 ("[W]e cannot ignore the risk that [the ban] might
deprive us of the work of a future Melville or Hawthorne."), even though a
footnote immediately renders this concern at least hyperbolic:

These authors' familiar masterworks would survive the honoraria ban as
currently administered. Besides exempting all books, the [regulations
implementing the ban] protect fiction and poetry from the ban's coverage,
although the statute's language is not so clear. But some great artists deal in
fact as well as fiction, and some deal in both.

Id. n.16 (citations omitted).

Here, even though it is perhaps unlikely that the Carnegie Library will ever
stand in the dock for putting its card catalogue online, or that the Government
will hale the ACLU into court for its online quiz of the seven dirty words, we
cannot ignore that the Act could reach these activities. The definition of
indecency, like the definition of obscenity, is not a rigid formula. Rather, it
confers a large degree of autonomy to individual communities to set the bounds
of decency for themselves. Cf. Sable, 492 U.S. at 125-26. This is as it should
be, since this flexibility recognizes that ours is a country with diverse
cultural and historical roots. See, e.g., Hamling, 418 U.S. at 104 ("A
juror is entitled to draw on his own knowledge of the views of the average
person in the community or vicinage from which he comes for making the required
determination, just as he is entitled to draw on his knowledge of the
propensities of a 'reasonable' person in other areas of the law.").

Putting aside hyperbolic application, I also have little doubt that some
communities could well consider plaintiffs' speech indecent, and these
plaintiffs could -- perhaps should -- have a legitimate fear of prosecution. In
Action for Children's Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995), the
District of Columbia Court of Appeals summarized three broadcasts that the FCC
found indecent in the late 1980s:

Id. at 657 (citing In re Infinity Broadcasting Corp., 3 FCC R. 930, 932
(1987)). In Infinity Broadcasting, one of the broadcasts that the FCC found
indecent was an excerpt of a play about AIDS, finding that the excerpts "contained
the concentrated and repeated use of vulgar and shocking language to portray
graphic and lewd depictions of excretion, anal intercourse, ejaculation,
masturbation, and oral-genital sex". 3 FCC R. at 934.(9) To the FCC, even
broadcasts with "public value . . . addressing the serious problems posed
by AIDS" can be indecent if "that material is presented in a manner
that is patently offensive". Id. (emphasis in original).(10)

Yet, this is precisely the kind of speech that occurs, for example, on
Critical Path AIDS Project's Web site, which includes safer sex instructions
written in street language for easy comprehension. The Web site also describes
the risk of HIV transmission for particular sexual practices. The FCC's
implication in In the Matter of King Broadcasting Co., 5 FCC R. 2971 (1990),
that a "candid discussion[] of sexual topics" on television was decent
in part because it was "not presented in a pandering, titillating or vulgar
manner" would be unavailing to Critical Path, other plaintiffs, and some
amici. These organizations want to pander and titillate on their Web sites, at
least to a degree, to attract a teen audience and deliver their message in an
engaging and coherent way.(11)

In In re letter to Merrell Hansen, 6 FCC R. 3689 (1990), the FCC found
indecent a morning discussion between two announcers regarding Jim Bakker's
alleged rape of Jessica Hahn. Id. Here, too, the FCC recognized that the
broadcast had public value. Id. (noting that the broadcast concerned "an
incident that was at the time 'in the news'"). Yet, under the FCC's
interpretation of Pacifica, "the merit of a work is 'simply one of the many
variables' that make up a work's context". Id. (citation omitted).

One of the plaintiffs here, Stop Prisoner Rape, Inc., has as its core
purpose the issue of prison rape. The organization creates chat rooms in which
members can discuss their experiences. Some amici have also organized Web sites
dedicated to survivors of rape, incest, and other sexual abuse. These Web sites
provide fora for the discussion and contemplation of shared experiences. The
operators of these sites, and their participants, could legitimately fear
prosecution under the CDA.

With respect to vulgarity, the Government is in a similarly weak position.
In Pacifica, the Supreme Court held that multiple repetition of expletives could
be indecent. Pacifica, 438 U.S. at 750. Although the FCC did not follow this
rationale with respect to a broadcast of "a bona fide news story" on
National Public Radio, Letter to Mr. Peter Branton, 6 FCC R. 610 (1991), aff'd
on other grounds sub nom. Branton v. FCC, 993 F.2d 906, 908 (D.C. Cir. 1993),
the ACLU, a plaintiff here, could take little comfort from that administrative
decision. It would need to discern, for example, whether a chat room that it
organized to discuss the meaning of the word fuck was more like the Carlin
monologue or more like a National Public Radio broadcast.(12) Plaintiffs'
expert would have found expletives indecent in a community consisting only of
himself,(13) and his views undoubtedly -- and reasonably -- reflect the view of
many people.

In sum, I am less confident than the Government that societal mores have
changed so drastically since Pacifica that an online equivalent of the Carlin
monologue, or the Carlin monologue itself online, would pass muster under the
CDA. Under existing precedent, plaintiffs' fear of prosecution under the Act is
legitimate, even though they are not the pornographers Congress had in mind when
it passed the CDA.(14) Cf. City of Houston v. Hill, 482 U.S. 451, 459 (1987).
My discussion of the effect and reach of the CDA, therefore, applies both to
plaintiffs' hyperbolic concerns and to their very real ones.

D. A Medium-Specific Analysis

The Internet is a new medium of mass communication.(15) As such, the
Supreme Court's First Amendment jurisprudence compels us to consider the special
qualities of this new medium in determining whether the CDA is a constitutional
exercise of governmental power. Relying on these special qualities, which we
have described at length in our Findings of fact above, I conclude that the CDA
is unconstitutional and that the First Amendment denies Congress the power to
regulate protected speech on the Internet. This analysis and conclusions are
consistent with Congress's intent to avoid tortuous and piecemeal review of the
CDA by authorizing expedited, direct review in the Supreme Court "as a
matter of right" of interlocutory, and not merely final, orders upholding
facial challenges to the Act. See § 561(b) of the Telecommunications Act
of 1996.(16)

1. The Differential Treatment of Mass Communication Media

Nearly fifty years ago, Justice Jackson recognized that "[t]he moving
picture screen, the radio, the newspaper, the handbill, the sound truck and the
street corner orator have differing natures, values, abuses and dangers. Each .
. . is a law unto itself". Kovacs v. Cooper, 336 U.S. 77, 97 (1949)
(Jackson, J., concurring). The Supreme Court has expressed this sentiment time
and again since that date, and differential treatment of the mass media has
become established First Amendment doctrine. See, e.g., Turner Broadcasting
Sys., Inc. v. FCC, 114 S. Ct. 2445, 2456 (1994) ("It is true that our cases
have permitted more intrusive regulation of broadcast speakers than of speakers
in other media."); Pacifica, 438 U.S. at 748 ("We have long recognized
that each medium of expression presents special First Amendment problems.");
City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 496 (1974)
("Different communications media are treated differently for First
Amendment purposes.") (Blackmun, J., concurring); Metromedia, Inc. v. City
of San Diego, 453 U.S. 490, 500-01 (1981) (plurality opinion) ("This Court
has often faced the problem of applying the broad principles of the First
Amendment to unique forums of expression."). Thus, the Supreme Court has
established different rules for print, Miami Herald Publishing Co. v. Tornillo,
418 U.S. 241 (1974), broadcast radio and television, see, e.g., Red Lion
Broadcasting Co. v. FCC, 395 U.S. 367 (1969), cable television, Turner, 114 S.
Ct. at 2456-57, and even billboards, Metromedia, 453 U.S. at 501, and drive-in
movie theaters, Erzoznik v. City of Jacksonville, 422 U.S. 205 (1975).

This medium-specific approach to mass communication examines the underlying
technology of the communication to find the proper fit between First Amendment
values and competing interests. In print media, for example, the proper fit
generally forbids governmental regulation of content, however minimal.
Tornillo, 418 U.S. at 258. In other media (billboards, for example), the proper
fit may allow for some regulation of both content and of the underlying
technology (such as it is) of the communication. Metromedia, 453 U.S. at 502.

Radio and television broadcasting present the most expansive approach to
medium-specific regulation of mass communication. As a result of the scarcity
of band widths on the electromagnetic spectrum, the Government holds broad
authority both to parcel out the frequencies and to prohibit others from
speaking on the same frequency:

As a general matter, there are more would-be broadcasters than frequencies
available in the electromagnetic spectrum. And if two broadcasters were to
attempt to transmit over the same frequency in the same locale, they would
interfere with one another's signals, so that neither could be heard at all.
The scarcity of broadcast frequencies thus required the establishment of some
regulatory mechanism to divide the electromagnetic spectrum and assign specific
frequencies to particular broadcasters.

This scarcity also allows the Government to regulate content even after it
assigns a license:

In addition, the inherent physical limitation on the number of speakers who
may use the broadcast medium has been thought to require some adjustment in
traditional First Amendment analysis to permit the Government to place limited
content restraints, and impose certain affirmative obligations, on broadcast
licensees.

Id. at 2457 (citing Red Lion, 395 U.S. at 390-95; National Broadcasting Co.
v. United States, 319 U.S. 190 (1943)).

The broadcasting cases firmly establish that the Government may force a
licensee to offer content to the public that the licensee would otherwise not
offer, thereby assuring that radio and television audiences have a diversity of
content. In broadcasting, "[i]t is the right of the public to receive
suitable access to social, political, esthetic, moral, and other ideas and
experiences which is crucial". Red Lion, 395 U.S. at 390; see also CBS,
Inc. v. FCC, 453 U.S. 367, 395 (1981) ("A licensed broadcaster is 'granted
the free and exclusive use of a limited and valuable part of the public domain;
when he accepts that franchise it is burdened by enforceable public
obligations.'") (citation omitted); Columbia Broadcasting Sys., Inc. v.
Democratic Nat'l Comm., 412 U.S. 94, 110-11 (1973). These content restrictions
include punishing licensees who broadcast inappropriate but protected speech at
an impermissible time. Pacifica, 438 U.S. at 750-51.

In this case, the Government relies on the Pacifica decision in arguing that
the CDA is a constitutional exercise of governmental power. Since the CDA
regulates indecent speech, and since Pacifica authorizes governmental regulation
of indecent speech (so the Government's argument goes), it must follow that the
CDA is a valid exercise of governmental power. That argument, however, ignores
Pacifica's roots as a decision addressing the proper fit between broadcasting
and the First Amendment. The argument also assumes that what is good for
broadcasting is good for the Internet.

2. The Scope of the Pacifica Decision

In FCC v. Pacifica Foundation, 438 U.S. 726 (1978), the Supreme Court first
decided whether the Government had the power to regulate indecent speech. Id.
at 729. In Pacifica, a radio listener complained about the broadcast of George
Carlin's "Filthy Words" monologue at 2:00 p.m. on a Tuesday afternoon.
Id. at 729-30. The Carlin monologue was replete with "the words you
couldn't say on the public . . . airwaves . . . , ever", and the listener
had tuned in while driving with his young son in New York. Id. The FCC issued
a declaratory order, holding that it could have subjected the Pacifica
Foundation (owner of the radio station) to an administrative sanction. Id. at
730. In its order the FCC also described the standards that it would use in the
future to regulate indecency in the broadcast medium. Id. at 731. The Supreme
Court upheld the FCC's decision and confirmed the power of that agency to
regulate indecent speech. Id. at 750-51.

The rationale of Pacifica rested on three overlapping considerations.
First, using as its example the Carlin monologue before it, the Court weighed
the value of indecent speech and concluded that such speech "lie[s] at the
periphery of First Amendment concerns." Id. at 743. Although the Court
recognized that the FCC had threatened to punish Pacifica based on the content
of the Carlin monologue, id. at 742, it found that the punishment would have
been permissible because four-letter words "offend for the same reasons
that obscenity offends." Id. at 746 (footnote omitted). The Court then
described the place of four-letter words "in the hierarchy of first
amendment values":

Such utterances are no essential part of any exposition of ideas, and are of
such slight social value as a step to truth that any benefit that may be derived
from them is clearly outweighed by the social interest in order and morality.

Second, the Court recognized that "broadcasting . . . has received the
most limited First Amendment protection." Id. at 748. The Government may
regulate broadcast consistent with the Constitution, even though the same
regulation would run afoul of the First Amendment in the print medium. Id.
(comparing Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) with Miami
Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974)). This is so because
broadcasting has a "uniquely pervasive presence in the lives of all
Americans" and "is uniquely accessible to children, even those too
young to read." Pacifica, 438 U.S. at 748-49.

Third, the Court found the FCC's sanction -- an administrative sanction --
to be an appropriate means of regulating indecent speech. At the outset of the
opinion, the Court disclaimed that its holding was a "consider[ation of]
any question relating to the possible application of § 1464 as a criminal
statute." Id. at 739 n.13. Later in the opinion, the Court "emphasize[d]
the narrowness of [its] holding", and explicitly recognized that it had not
held that the Carlin monologue would justify a criminal prosecution. Id. at
750. Instead, the Court allowed the FCC to regulate indecent speech with
administrative penalties under a "nuisance" rationale -- "like a
pig in the parlor instead of the barnyard." Id. at 750 (citation omitted).

Time has not been kind to the Pacifica decision. Later cases have eroded
its reach, and the Supreme Court has repeatedly instructed against overreading
the rationale of its holding.

First, in Bolger v. Young Drug Products Corp., 463 U.S. 60 (1983), the
Supreme Court refused to extend Pacifica to a law unrelated to broadcasting. In
that case, a federal law prohibited the unsolicited mailing of contraceptive
advertisements. Id. at 61. The Government defended the law by claiming an
interest in protecting children from the advertisements. The Court rejected
this argument as overbroad:

In [Pacifica], this Court did recognize that the Government's interest in
protecting the young justified special treatment of an afternoon broadcast heard
by adults as well as children. At the same time, the majority "emphasize[d]
the narrowness of our holding", explaining that broadcasting is "uniquely
pervasive" and that it is "uniquely accessible to children, even those
too young to read." The receipt of mail is far less intrusive and
uncontrollable. Our decisions have recognized that the special interest of the
Federal Government in regulation of the broadcast media does not readily
translate into a justification for regulation of other means of communication.

Id. at 74 (citations and footnotes omitted) (emphasis in original) see also
id. at 72 ("[T]he 'short, though regular, journey from mail box to trash
can . . . is an acceptable burden, at least so far as the Constitution is
concerned.'") (citation omitted) (alterations in original).

Second, in Sable Communications v. FCC, 492 U.S. 115 (1989), the Supreme
Court again limited Pacifica. In that case, the Court considered the validity
of a ban on indecent "dial-a-porn" communications. Id. at 117-18.(17)
As in Bolger, the Government argued that Pacifica justified a complete ban of
that form of speech. The Supreme Court disagreed, holding instead that
Pacifica's "emphatically narrow" holding arose out of the "unique
attributes of broadcasting". Id. at 127. The Court held that the ban was
unconstitutional. Id. at 131.

Sable narrowed Pacifica in two ways. First, the Court implicitly rejected
Pacifica's nuisance rationale for dial-a-porn, holding instead that the
Government could only regulate the medium "by narrowly drawn regulations
designed to serve those interests without unnecessarily interfering with First
Amendment freedoms". Id. at 126 (citation omitted). Under this strict
scrutiny, "[i]t is not enough to show that the Government's ends are
compelling; the means must be carefully tailored to achieve those ends."
Id.; see also Fabulous Assoc. v. Pennsylvania Pub. Util. Comm., 896 F.2d 780,
784-85 (3d Cir. 1990).

Second, the Court concluded that the law, like a law it had struck down in
1957, "denied adults their free speech rights by allowing them to read only
what was acceptable for children". Sable, 492 U.S. at 126 (citing Butler
v. Michigan, 352 U.S. 380 (1957)). Thus, any regulation of dial-a-porn would
have to give adults the opportunity to partake of that medium. Id. This
conclusion echoes Bolger. See Bolger, 463 U.S. at 74 ("The level of
discourse reaching a mailbox simply cannot be limited to that which would be
suitable for a sandbox.").(18)

Finally, in Turner Broadcasting System, Inc. v. FCC, 114 S. Ct. 2445 (1994),
the Supreme Court implicitly limited Pacifica once again when it declined to
adopt the broadcast rationale for the medium of cable television. The Court
concluded that the rules for broadcast were "inapt" for cable because
of the "fundamental technological differences between broadcast and cable
transmission". Id. at 2457.

The legal significance to this case of Turner's refusal to apply the
broadcast rules to cable television cannot be overstated. Turner's holding
confirms beyond doubt that the holding in Pacifica arose out of the scarcity
rationale unique to the underlying technology of broadcasting, and not out of
the end product that the viewer watches. That is, cable television has no less
of a "uniquely pervasive presence" than broadcast television, nor is
cable television more "uniquely accessible to children" than
broadcast. See Pacifica, 438 U.S. at 748-49. From the viewer's perspective,
cable and broadcast television are identical: moving pictures with sound from a
box in the home. Whether one receives a signal through an antenna or through a
dedicated wire, the end result is just television in either case. In declining
to extend broadcast's scarcity rationale for cable, the Supreme Court also
implicitly limited Pacifica, the holding of which flows directly from that
rationale.(19)

Turner thus confirms that the analysis of a particular medium of mass
communication must focus on the underlying technology that brings the
information to the user. In broadcast, courts focus on the limited number of
band widths and the risk of interference with those frequencies. See, e.g.,
Turner, 114 S. Ct. at 2456-57. In cable, courts focus on the number of
channels, the different kinds of cable operators, and the cost to the consumer.
Id. at 2452.

I draw two conclusions from the foregoing analysis. First, from the Supreme
Court's many decisions regulating different media differently, I conclude that
we cannot simply assume that the Government has the power to regulate protected
speech over the Internet, devoting our attention solely to the issue of whether
the CDA is a constitutional exercise of that power. Rather, we must also decide
the validity of the underlying assumption as well, to wit, whether the
Government has the power to regulate protected speech at all. That decision
must take into account the underlying technology, and the actual and potential
reach, of that medium. Second, I conclude that Pacifica's holding is not
persuasive authority here, since plaintiffs and the Government agree that
Internet communication is an abundant and growing resource. Nor is Sable
persuasive authority, since the Supreme Court's holding in that case addressed
only one particular type of communication (dial-a-porn), and reached no
conclusions about the proper fit between the First Amendment and telephone
communications generally. Again, plaintiffs and the Government here agree that
the Internet provides content as broad as the imagination.

3. The Effect of the CDA and the Novel Characteristics of Internet
Communication

Over the course of five days of hearings and many hundreds of pages of
declarations, deposition transcripts, and exhibits, we have learned about the
special attributes of Internet communication. Our Findings of fact -- many of
them undisputed -- express our understanding of the Internet. These Findings
lead to the conclusion that Congress may not regulate indecency on the Internet
at all.

Four related characteristics of Internet communication have a transcendent
importance to our shared holding that the CDA is unconstitutional on its face.
We explain these characteristics in our Findings of fact above, and I only
rehearse them briefly here. First, the Internet presents very low barriers to
entry. Second, these barriers to entry are identical for both speakers and
listeners. Third, as a result of these low barriers, astoundingly diverse
content is available on the Internet. Fourth, the Internet provides significant
access to all who wish to speak in the medium, and even creates a relative
parity among speakers.

To understand how disruptive the CDA is to Internet communication, it must
be remembered that the Internet evolved free of content-based considerations.
Before the CDA, it only mattered how, and how quickly, a particular packet of
data travelled from one point on the Internet to another. In its earliest
incarnation as the ARPANET, the Internet was for many years a private means of
access among the military, defense contractors, and defense-related researchers.
The developers of the technology focused on creating a medium designed for the
rapid transmittal of the information through overlapping and redundant
connections, and without direct human involvement. Out of these considerations
evolved the common transfer protocols, packet switching, and the other
technology in which today's Internet users flourish. The content of the data
was, before the CDA, an irrelevant consideration.

It is fair, then, to conclude that the benefits of the Internet to private
speakers arose out of the serendipitous development of its underlying
technology. As more networks joined the "network of networks" that is
the Internet, private speakers have begun to take advantage of the medium. This
should not be surprising, since participation in the medium requires only that
networks (and the individual users associated with them) agree to use the common
data transfer protocols and other medium-specific technology. Participation
does not require, and has never required, approval of a user's or network's
content.

After the CDA, however, the content of a user's speech will determine the
extent of participation in the new medium. If a speaker's content is even
arguably indecent in some communities, he must assess, inter alia, the risk of
prosecution and the cost of compliance with the CDA. Because the creation and
posting of a Web site allows users anywhere in the country to see that site,
many speakers will no doubt censor their speech so that it is palatable in every
community. Other speakers will decline to enter the medium at all. Unlike
other media, there is no technologically feasible way for an Internet speaker to
limit the geographical scope of his speech (even if he wanted to), or to "implement[]
a system for screening the locale of incoming" requests. Sable 492 U.S. at
125.

The CDA will, without doubt, undermine the substantive, speech-enhancing
benefits that have flowed from the Internet. Barriers to entry to those speakers
affected by the Act would skyrocket, especially for non-commercial and
not-for-profit information providers. Such costs include those attributable to
age or credit card verification (if possible), tagging (if tagging is even a
defense under the Act(20)), and monitoring or review of one's content.

The diversity of the content will necessarily diminish as a result. The
economic costs associated with compliance with the Act will drive from the
Internet speakers whose content falls within the zone of possible prosecution.
Many Web sites, newsgroups, and chat rooms will shut down, since users cannot
discern the age of other participants. In this respect, the Internet would
ultimately come to mirror broadcasting and print, with messages tailored to a
mainstream society from speakers who could be sure that their message was likely
decent in every community in the country.

The CDA will also skew the relative parity among speakers that currently
exists on the Internet. Commercial entities who can afford the costs of
verification, or who would charge a user to enter their sites, or whose content
has mass appeal, will remain unaffected by the Act. Other users, such as
Critical Path or Stop Prisoner Rape, or even the ACLU, whose Web sites before
the CDA were as equally accessible as the most popular Web sites, will be
profoundly affected by the Act. This change would result in an Internet that
mirrors broadcasting and print, where economic power has become relatively
coterminous with influence.

Perversely, commercial pornographers would remain relatively unaffected by
the Act, since we learned that most of them already use credit card or adult
verification anyway. Commercial pornographers normally provide a few free
pictures to entice a user into proceeding further into the Web site. To proceed
beyond these teasers, users must provide a credit card number or adult
verification number. The CDA will force these businesses to remove the teasers
(or cover the most salacious content with cgi scripts), but the core, commercial
product of these businesses will remain in place.

The CDA's wholesale disruption on the Internet will necessarily affect adult
participation in the medium. As some speakers leave or refuse to enter the
medium, and others bowdlerize their speech or erect the barriers that the Act
envisions, and still others remove bulletin boards, Web sites, and newsgroups,
adults will face a shrinking ability to participate in the medium. Since much
of the communication on the Internet is participatory, i.e., is a form of
dialogue, a decrease in the number of speakers, speech fora, and permissible
topics will diminish the worldwide dialogue that is the strength and signal
achievement of the medium.

It is no answer to say that the defenses and exclusions of § 223(e)
mitigate the disruptive forces of the Act. We have already found as facts that
the defenses either are not available to plaintiffs here or would impose
excessive costs on them. These defenses are also unavailable to participants in
specific forms of Internet communication.

I am equally dubious that the exclusions of § 223(e) would provide
significant relief from the Act. The "common carrier" exclusion of §
223(e)(1), for example, would not insulate America Online from liability for the
content it provides to its subscribers. It is also a tricky question whether an
America Online chat room devoted to, say, women's reproductive health, is or is
not speech of the service itself, since America Online, at least to some extent,
"creat[es] the content of the communication" simply by making the room
available and assigning it a topic. Even if America Online has no liability
under this example, the service might legitimately choose not to provide fora
that led to the prosecution of its subscribers. Similarly, it is unclear
whether many caching servers are devoted "solely" to the task of "intermediate
storage". The "vicarious liability" exclusion of §
223(e)(4) would not, for example, insulate either a college professor or her
employer from liability for posting an indecent online reading assignment for
her freshman sociology class.

We must of course give appropriate deference to the legislative judgments of
Congress. See Sable, 492 U.S. at 129; Turner, 114 S. Ct. at 2472-73 (Blackmun,
J., concurring). After hearing the parties' testimony and reviewing the
exhibits, declarations, and transcripts, we simply cannot in my view defer to
Congress's judgment that the CDA will have only a minimal impact on the
technology of the Internet, or on adult participation in the medium. As in
Sable, "[d]eference to a legislative finding cannot limit judicial inquiry
when First Amendment rights are at stake." Sable, 492 U.S. at 129
(citation omitted). Indeed, the Government has not revealed Congress's "extensive
record" in addressing this issue, Turner, 114 S. Ct. at 2472 (Blackmun, J.,
concurring), or otherwise convinced me that the record here is somehow factually
deficient to the record before Congress when it passed the Act.

4. Diversity and Access on the Internet

Nearly eighty years ago, Justice Holmes, in dissent, wrote of the ultimate
constitutional importance of the "free trade in ideas":

[W]hen men have realized that time has upset many fighting faiths, they may
come to believe even more than they believe the very foundations of their own
conduct that the ultimate good desired is better reached by free trade in ideas
-- that the best test of truth is the power of the thought to get itself
accepted in the competition of the market . . . .

For nearly as long, critics have attacked this much-maligned "marketplace"
theory of First Amendment jurisprudence as inconsistent with economic and
practical reality. Most marketplaces of mass speech, they charge, are dominated
by a few wealthy voices. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241,
248-50 (1974). These voices dominate -- and to an extent, create -- the
national debate. Id. Individual citizens' participation is, for the most part,
passive. Id. at 251. Because most people lack the money and time to buy a
broadcast station or create a newspaper, they are limited to the role of
listeners, i.e., as watchers of television or subscribers to newspapers. Id.

Economic realities limit the number of speakers even further. Newspapers
competing with each other and with (free) broadcast tend toward extinction, as
fixed costs drive competitors either to consolidate or leave the marketplace.
Id. at 249-50. As a result, people receive information from relatively few
sources:

The elimination of competing newspapers in most of our large cities, and the
concentration of control of media that results from the only newspaper's being
owned by the same interests which own a television station and a radio station,
are important components of this trend toward concentration of control of
outlets to inform the public.

The result of these vast changes has been to place in a few hands the power
to inform the American people and shape public opinion.

Id. at 249.

The Supreme Court has also recognized that the advent of cable television
has not offered significant relief from this problem. Although the number of
cable channels is exponentially greater than broadcast, Turner, 114 S. Ct. at
2452, cable imposes relatively high entry costs, id. at 2451-52 (noting that the
creation of a cable system requires "[t]he construction of [a] physical
infrastructure").

Nevertheless, the Supreme Court has resisted governmental efforts to
alleviate these market dysfunctions. In Tornillo, the Supreme Court held that
market failure simply could not justify the regulation of print, 418 U.S. at
258, regardless of the validity of the criticisms of that medium, id. at 251.
Tornillo invalidated a state "right-of-reply" statute, which required
a newspaper critical of a political candidate to give that candidate equal time
to reply to the charges. Id. at 244. The Court held that the statute would be
invalid even if it imposed no cost on a newspaper, because of the statute's
intrusion into editorial discretion:

A newspaper is more than a passive receptacle or conduit for news, comment,
and advertising. The choice of material to go into a newspaper, and the
decisions made as to limitations on the size and content of the paper, and
treatment of public issues and public officials -- whether fair or unfair --
constitute the exercise of editorial control and judgment.

Id. at 258.

Similarly, in Turner, the Supreme Court rejected the Government's argument
that market dysfunction justified deferential review of speech regulations for
cable television. Even recognizing that the cable market "suffers certain
structural impediments", Turner, 114 S. Ct. at 2457, the Court could not
accept the Government's conclusion that this dysfunction justified
broadcast-type standards of review, since "the mere assertion of
dysfunction or failure in a speech market, without more, is not sufficient to
shield a speech regulation from the First Amendment standards applicable to
nonbroadcast media." Id. at 2458. "[L]aws that single out the press,
or certain elements thereof, for special treatment 'pose a particular danger of
abuse by the State,' and so are always subject to at least some degree of
heightened First Amendment scrutiny." Id. (citation omitted).(21) The
Court then eloquently reiterated that government-imposed, content-based speech
regulations are generally inconsistent with "[o]ur political system and
cultural life":

At the heart of the First Amendment lies the principle that each person
should decide for him or herself the ideas and beliefs deserving of expression,
consideration, and adherence. Our political system and cultural life rest upon
this ideal. Government action that stifles speech on account of its message, or
that requires the utterance of a particular message favored by the Government,
contravenes this essential right. Laws of this sort pose the inherent risk that
the Government seeks not to advance a legitimate regulatory goal, but to
suppress unpopular ideas or information or manipulate the public debate through
coercion rather than persuasion. These restrictions "rais[e] the specter
that the Government may effectively drive certain ideas or viewpoints from the
marketplace."

Id. (citation omitted).

Both Tornillo and Turner recognize, in essence, that the cure for market
dysfunction (government-imposed, content-based speech restrictions) will almost
always be worse than the disease. Here, however, I am hard-pressed even to
identify the disease. It is no exaggeration to conclude that the Internet has
achieved, and continues to achieve, the most participatory marketplace of mass
speech that this country -- and indeed the world -- has yet seen. The
plaintiffs in these actions correctly describe the "democratizing"
effects of Internet communication: individual citizens of limited means can
speak to a worldwide audience on issues of concern to them. Federalists and
Anti-Federalists may debate the structure of their government nightly, but these
debates occur in newsgroups or chat rooms rather than in pamphlets. Modern-day
Luthers still post their theses, but to electronic bulletin boards rather than
the door of the Wittenberg Schlosskirche. More mundane (but from a
constitutional perspective, equally important) dialogue occurs between aspiring
artists, or French cooks, or dog lovers, or fly fishermen.

Indeed, the Government's asserted "failure" of the Internet rests
on the implicit premise that too much speech occurs in that medium, and that
speech there is too available to the participants. This is exactly the benefit
of Internet communication, however. The Government, therefore, implicitly asks
this court to limit both the amount of speech on the Internet and the
availability of that speech. This argument is profoundly repugnant to First
Amendment principles.

My examination of the special characteristics of Internet communication, and
review of the Supreme Court's medium-specific First Amendment jurisprudence,
lead me to conclude that the Internet deserves the broadest possible protection
from government-imposed, content-based regulation. If "the First Amendment
erects a virtually insurmountable barrier between government and the print media",
Tornillo, 418 U.S. at 259 (White, J., concurring), even though the print medium
fails to achieve the hoped-for diversity in the marketplace of ideas, then that
"insurmountable barrier" must also exist for a medium that succeeds in
achieving that diversity. If our Constitution "prefer[s] 'the power of
reason as applied through public discussion'", id. (citation omitted), "[r]egardless
of how beneficent-sounding the purposes of controlling the press might be",
id., even though "occasionally debate on vital matters will not be
comprehensive and . . . all viewpoints may not be expressed", id. at 260, a
medium that does capture comprehensive debate and does allow for the expression
of all viewpoints should receive at least the same protection from intrusion.

Finally, if the goal of our First Amendment jurisprudence is the "individual
dignity and choice" that arises from "putting the decision as to what
views shall be voiced largely into the hands of each of us", Leathers v.
Medlock, 499 U.S. 439, 448-49 (1991) (citing Cohen v. California, 403 U.S. 15,
24 (1971)), then we should be especially vigilant in preventing content-based
regulation of a medium that every minute allows individual citizens actually to
make those decisions. Any content-based regulation of the Internet, no matter
how benign the purpose, could burn the global village to roast the pig. Cf.
Butler, 352 U.S. at 383.

5. Protection of Children from Pornography

I accept without reservation that the Government has a compelling interest
in protecting children from pornography. The proposition finds one of its
clearest expressions in Mill, who recognized that his exposition regarding
liberty itself "is meant to apply only to human beings in the maturity of
their faculties":

We are not speaking of children or of young persons below the age which the
law may fix as that of manhood or womanhood. Those who are still in a state to
require being taken care of by others must be protected against their own
actions as well as against external injury.

This rationale, however, is as dangerous as it is compelling. Laws
regulating speech for the protection of children have no limiting principle, and
a well-intentioned law restricting protected speech on the basis of its content
is, nevertheless, state-sponsored censorship. Regulations that "drive
certain ideas or viewpoints from the marketplace" for children's benefit,
Simon & Schuster, 502 U.S. at 116, risk destroying the very "political
system and cultural life", Turner, 114 S. Ct. at 2458, that they will
inherit when they come of age.

I therefore have no doubt that a Newspaper Decency Act, passed because
Congress discovered that young girls had read a front page article in the New
York Times on female genital mutilation in Africa, would be unconstitutional.
Tornillo, 418 U.S. at 258. Nor would a Novel Decency Act, adopted after
legislators had seen too many pot-boilers in convenience store book racks, pass
constitutional muster. Butler, 352 U.S. at 383. There is no question that a
Village Green Decency Act, the fruit of a Senator's overhearing of a ribald
conversation between two adolescent boys on a park bench, would be
unconstitutional. Perry Education Ass'n v. Perry Local Educators' Ass'n, 460
U.S. 37, 45 (1983). A Postal Decency Act, passed because of constituent
complaints about unsolicited lingerie catalogues, would also be
unconstitutional. Bolger, 463 U.S. at 73. In these forms of communication,
regulations on the basis of decency simply would not survive First Amendment
scrutiny.

The Internet is a far more speech-enhancing medium than print, the village
green, or the mails. Because it would necessarily affect the Internet itself,
the CDA would necessarily reduce the speech available for adults on the medium.
This is a constitutionally intolerable result.

Some of the dialogue on the Internet surely tests the limits of conventional
discourse. Speech on the Internet can be unfiltered, unpolished, and
unconventional, even emotionally charged, sexually explicit, and vulgar -- in a
word, "indecent" in many communities. But we should expect such
speech to occur in a medium in which citizens from all walks of life have a
voice. We should also protect the autonomy that such a medium confers to
ordinary people as well as media magnates.

Moreover, the CDA will almost certainly fail to accomplish the Government's
interest in shielding children from pornography on the Internet. Nearly half of
Internet communications originate outside the United States, and some percentage
of that figure represents pornography. Pornography from, say, Amsterdam will be
no less appealing to a child on the Internet than pornography from New York
City, and residents of Amsterdam have little incentive to comply with the
CDA.(22)

My analysis does not deprive the Government of all means of protecting
children from the dangers of Internet communication. The Government can
continue to protect children from pornography on the Internet through vigorous
enforcement of existing laws criminalizing obscenity and child pornography. See
United States v. Thomas, 74 F.3d 701, 704-05 (6th Cir. 1995). As we learned at
the hearing, there is also a compelling need for public education about the
benefits and dangers of this new medium, and the Government can fill that role
as well. In my view, our action today should only mean that the Government's
permissible supervision of Internet content stops at the traditional line of
unprotected speech.

Parents, too, have options available to them. As we learned at the hearing,
parents can install blocking software on their home computers, or they can
subscribe to commercial online services that provide parental controls. It is
quite clear that powerful market forces are at work to expand parental options
to deal with these legitimate concerns. More fundamentally, parents can
supervise their children's use of the Internet or deny their children the
opportunity to participate in the medium until they reach an appropriate age.
See Fabulous, 896 F.2d at 788-89 (noting that "our society has
traditionally placed" these decisions "on the shoulders of the parent").

E.Conclusion

Cutting through the acronyms and argot that littered the hearing testimony,
the Internet may fairly be regarded as a never-ending worldwide conversation.
The Government may not, through the CDA, interrupt that conversation. As the
most participatory form of mass speech yet developed, the Internet deserves the
highest protection from governmental intrusion.

True it is that many find some of the speech on the Internet to be
offensive, and amid the din of cyberspace many hear discordant voices that they
regard as indecent. The absence of governmental regulation of Internet content
has unquestionably produced a kind of chaos, but as one of plaintiffs' experts
put it with such resonance at the hearing:

What achieved success was the very chaos that the Internet is. The strength
of the Internet is that chaos.(23)

Just as the strength of the Internet is chaos, so the strength of our
liberty depends upon the chaos and cacophony of the unfettered speech the First
Amendment protects.

For these reasons, I without hesitation hold that the CDA is
unconstitutional on its face.

IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF
PENNSYLVANIAAMERICAN CIVIL LIBERTIES UNION, et al.

v.

JANET RENO, Attorney General ofthe United States

CIVIL ACTION NO. 96-963

AMERICAN LIBRARY ASSOC., INC., et al.

v.

UNITED STATES DEP'T OFJUSTICE, et al.

CIVIL ACTION NO. 96-1458

ORDER

AND NOW, this 11th day of June, 1996, upon consideration of plaintiffs'
motions for preliminary injunction, and the memoranda of the parties and amici
curiae in support and opposition thereto, and after hearing, and upon the
findings of fact and conclusions of law set forth in the accompanying
Adjudication, it is hereby ORDERED that:

1. The motions are GRANTED;

2. Defendant Attorney General Janet Reno, and all acting under her
direction and control, are PRELIMINARILY ENJOINED from enforcing, prosecuting,
investigating or reviewing any matter premised upon:

(a) Sections 223(a)(1)(B) and 223(a)(2) of the Communications Decency Act of
1996 ("the CDA"), Pub. L. No. 104- 104, § 502, 110 Stat. 133,
133-36, to the extent such enforcement, prosecution, investigation, or review
are based upon allegations other than obscenity or child pornography; and

4. The parties shall advise the Court, in writing, as to their views
regarding the need for further proceedings on the later of (a) thirty days from
the date of this Order, or (b) ten days after final appellate review of this
Order.

BY THE COURT:

______________________________

Dolores K. Sloviter, C.J.

U.S. Court of Appeals

For the Third Circuit

______________________________

Ronald L. Buckwalter, J.

______________________________

Stewart Dalzell, J.

Notes (For the Panel)

(1)The CDA will be codified at 47 U.S.C. § 223(a) to (h). In the body
of this Adjudication, we refer to the provisions of the CDA as they will
ultimately be codified in the United States Code.

The eight counts of the amended complaint in this action focus on the CDA's
amendment to 47 U.S.C. § 223, and do not challenge the CDA's amendment of
18 U.S.C. § 1462(c).

(4)In addition, we have received briefs of amici curiae supporting and
opposing plaintiffs' contentions. Arguing in favor of our granting the motions
for preliminary injunction are Authors Guild, American Society of Journalists
and Authors, Ed Carp, Coalition for Positive Sexuality, CONNECTnet, Creative
Coalition on AOL, Tri Dang Do, Feminists for Free Expression, Margarita Lacabe,
Maggie LaNoue, LoD Communications, Peter Ludlow, Palmer Museum of Art, Chuck
More, Rod Morgan, PEN American Center, Philadelphia Magazine, PSINet, Inc., Eric
S. Raymond, Reporters Committee for Freedom of the Press, Don Rittner, The
Sexuality Information and Education Council of the United States, Lloyd K.
Stires, Peter J. Swanson, Kirsti Thomas, Web Communications, and Miryam Ehrlich
Williamson. Opposing the motion are the Family Life Project of the American
Center for Law and Justice and a group consisting of The National Law Center for
Children and Families, Family Research Council, "Enough Is Enough!"
Campaign, National Coalition for the Protection of Children and Families, and
Morality in Media.

(5)The Act does not define "telecommunications device". By Order
dated February 27, 1996, we asked the parties to address whether a modem is a "telecommunications
device". Plaintiffs and the Government answered in the affirmative, and we
agree that the plain meaning of the phrase and the legislative history of the
Act strongly support their conclusion. "Telecommunications" under 47
U.S.C. § 153(48) means "the transmission, between or among points
specified by the user, of information of the user's choosing, without change in
the form of content of the information as sent and received." The plain
meaning of "device" is "something that is formed or formulated by
design and usu[ally] with consideration of possible alternatives, experiment,
and testing." Webster's Third New International Dictionary, 618 (1986).
Clearly, the sponsors of the CDA thought it would reach individual Internet
users, many of whom still connect through modems. See, e.g., 141 Cong. Rec.
S8329-46 (daily ed. June 14, 1995) (statements of Sen. Exon and Sen. Coats).

The resolution of the tension between the scope of "telecommunications
device" and the scope of "interactive computer service" as
defined in 47 U.S.C. § 230(a)(2), see infra note 6, must await another day.
It is sufficient for us to conclude that the exclusion of § 223(h)(1)(B)
is probably a narrow one (as the Government has argued), insulating an
interactive computer service from criminal liability under the CDA but not
insulating users who traffic in indecent and patently offensive materials on the
Internet through those services.

(6)The statute at § 509 amends 47 U.S.C. to add § 230(e)(2), which
defines such a service as "any information service, system, or access
software provider that provides or enables computer access by multiple users to
a computer server, including specifically a service or system that provides
access to the Internet and such systems operated or services offered by
libraries or educational institutions."

(7)In the Government's Opposition to plaintiffs' motion for a temporary
restraining order in C.A. No. 96-963, it notes "the Department has a
longstanding policy that previous such provisions are unconstitutional and will
not be enforced", and that both President Clinton and General Reno "have
made th[e] point clear" that no one will be prosecuted under "the
abortion-related provision of newly-amended 18 U.S.C. § 1462(c)."
Opposition at 19, n.11 (February 14, 1996). In view of this "longstanding
policy", the Government contends there is no realistic fear of prosecution
and, so the argument goes, no need for equitable relief. Id. In their
post-hearing brief, the ACLU plaintiffs inform us that in view of the
Government's statement, "they do not seek a preliminary injunction against
the enforcement of § 1462(c)." Post-Trial Brief of ACLU Plaintiffs at
2 n.2.

(8)The court again expresses its appreciation to the parties for their
cooperative attitude in evolving the stipulation.

(9)The Government has not by motion challenged the standing of any plaintiff
in either case, and we harbor no doubts of our own on that point,
notwithstanding the Government's suggestion in a footnote of its post-hearing
brief. See Defendants' Post-Hearing Memorandum at 37 n.46 ("Plaintiffs'
assertions as to the speech at issue are so off-point as to raise standing
concerns."). Descriptions of these plaintiffs, as well as of the nature
and content of the speech they contend is or may be affected by the CDA, are set
forth in paragraphs 70 through 356 at pages 30 through 103 of the parties'
stipulation filed in these actions. These paragraphs will not be reproduced
here, but will be deemed adopted as Findings of the court.

(10)It became clear from the testimony that moderated newsgroups are the
exception and unmoderated newsgroups are the rule.

(11)The evidence adduced at the hearings provided detail to this paragraph
of the parties' stipulation. See Findings 95 to 107.

(12)Testimony adduced at the hearing suggests that market forces exist to
limit the availability of material on-line that parents consider inappropriate
for their children. Although the parties sharply dispute the efficacy of
so-called "parental empowerment" software, there is a sufficiently
wide zone of agreement on what is available to restrict access to unwanted sites
that the parties were able to enter into twenty-one paragraphs of stipulated
facts on the subject, which form the basis of paragraphs 49 through 69 of our
Findings of fact. Because of the rapidity of developments in this field, some
of the technological facts we have found may become partially obsolete by the
time of publication of these Findings.

(13)This membership is constantly growing, according to the testimony of
Albert Vezza, Chairman of the World Wide Web Consortium. See also Defendants'
Ex. D-167.

(14)See also Defendants' Ex. D-174 and the testimony of Mr. Vezza.

(15) From this point, our Findings are, unless noted, no longer based upon
the parties' stipulation, but upon the record adduced at the hearings.

(16)Mr. Bradner is a member of the Internet Engineering Task Force, the
group primarily responsible for Internet technical standards, as well as other
Internet-related associations responsible for, among other things, the
prevailing Internet Protocols. He is also associated with Harvard University.

(17)Dr. Olsen chairs the Computer Science Department at Brigham Young
University in Provo, Utah, and is the recently-appointed Director of the Human
Computer Interaction Institute at Carnegie-Mellon University in Pittsburgh,
Pennsylvania.

(18)The term "information content provider" is defined in §
509 of the CDA, at the new 47 U.S.C. § 230(e)(3), as "any person or
entity that is responsible, in whole or in part, for the creation or development
of information provided through the Internet or any other interactive computer
service."

(19)By "verification", we mean the method by which a user types in
his or her credit card number, and the Web site ensures that the credit card is
valid before it allows the user to enter the site.

(20)InterNIC is a naming organization, not a regulator of content. InterNIC
and two other European organizations maintain a master list of domain names to
ensure that no duplication occurs. Creators of Web sites must register their
domain name with InterNIC, and the agency will instruct the creator to choose
another name if the new Web site has the name of an already-existing site.
InterNIC has no control over content on a site after registration.

(21)This paragraph and the preceding paragraph also illustrate that a
content provider might store its own material or someone else's on a caching
server. The goal -- saving money and time -- is the same in both cases.

Notes (Judge Sloviter)

(1)It also probably covers speech protected by the First Amendment for some
minors a well, because it fails to limit its reach to that which is harmful for
minors, an issue which it is not necessary to decide in light of the other
conclusions reached.

Notes (Judge Buckwalter)

(1)If by virtue of the statute's authorization of expedited review of its
constitutionality, "on its face," 47 U.S.C. §561(a), we were
strictly limited to looking at the words of the statute, I would stand by my
T.R.O. opinion. However, in light of the procedures which are required by 47
U.S.C. § 561(a) and 28 U.S.C. § 2284, and were followed by this court
in establishing an extensive record in this case, to ignore the evidence
presented would be to ignore what an action for injunctive relief is all about.

Section 561 reads as follows:

§ 561. EXPEDITED REVIEW.

(a) THREE-JUDGE DISTRICT COURT HEARING -- Notwithstanding any other
provision of law, any civil action challenging the constitutionality, on its
face, of this title or any amendment made by this title, or any provision
thereof, shall be heard by a district court of 3 judges convened pursuant to the
provisions of section 2284 of title 28, United States Code.

Section 2284 states, in relevant part:

§ 2284. Three-judge court; when required; composition; procedure

(b) In any action required to be heard and determined by a district court of
three judges under subsection (a) of this section, the composition and procedure
of the court shall be as follows: . . .

(3) A single judge may conduct all proceedings except the trial . . . . He
may grant a temporary restraining order on a specific finding, based on evidence
submitted, that specified irreparable damages will result if the order is not
granted, which order, unless previously revoked by the district judge, shall
remain in force only until the hearing and determination by the district court
of three judges of an application for a preliminary injunction. . . .

(2)Justice Kennedy argues in his opinion in Simon & Schuster v. New York
Crime Victims Bd., 502 U.S. 105, 120 (1991), that "[t]he regulated content
has the full protection of the First Amendment and this, I submit, is itself a
full and sufficient reason for holding the statute unconstitutional. In my view
it is both unnecessary and incorrect to ask whether the state can show that the
statute 'is necessary to serve a compelling state interest and is narrowly drawn
to achieve that end.'" In the present case, there is no disagreement that
indecent and patently offensive speech have the full protection of the First
Amendment.

(3)Not only has speech been divided up and given values -- with some types
of speech given little or no protection (obscenity, fighting words, possibly
commercial speech) -- but also, by court decisions over the years, it has been
decided that the content of speech can indeed be regulated provided that the
regulation will directly and materially advance a compelling government
interest, and that it is narrowly tailored to accomplish that interest in the
least restrictive manner. However, any content-based restriction must survive
this most exacting scrutiny. Sable, 492 U.S. 115; Texas v. Johnson, 491 U.S.
397 (1989).

(4)The plaintiffs have made facial challenges to the disputed provisions of
the CDA on grounds of both vagueness and overbreadth. The approach taken and
language used in evaluating a statute under each of these doctrines commingles,
and frequently is treated as a single approach. "We have traditionally
viewed vagueness and overbreadth as logically related and similar doctrines."
Kolender v. Lawson, 461 U.S. 352, 358 n.8 (1983) (citing Keyishian v. Board of
Regents, 385 U.S. 589, 609, (1967); NAACP v. Button, 371 U.S. 415, 433 (1963)).
Even in cases where the court attempts to distinguish these two doctrines, it
acknowledges some interplay between them. See e.g. Village of Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, and n. 6 (1982).

In addition, when discussing overbreadth, one cannot avoid reference to the
same language used to describe and apply the strict scrutiny standard to
constitutionally protected activities. See e.g. Sable, 492 U.S. at 131;
Roberts v. Jaycees, 468 U.S. 609, 623 (1984). While there are occasional
attempts to argue for clear distinctions among these doctrines, see e.g.
Kolender, 461 U.S. at 369 (White, J., Rehnquist, J. dissenting), such bright
lines simply have not been, and most likely cannot be, drawn in this area.

(5)Comparing a different portion of each of these two provisions suggests
that different terms are not to be read to mean the same thing. As written,
section (a) pertains to telecommunications devices, and section (d) to
interactive computer services. While we have not entirely resolved the tension
between these definitions at this stage, it has been established that these
terms are not synonymous, but are in fact intended to denote different
technologies. This, together with the rule of statutory construction set forth
in Chief Judge Sloviter's opinion, seems to suggest on the face of the statute
that indecent and patently offensive also are not to be read as synonymous.

(6)18 U.S.C. §1461 states, "The term `indecent' as used in this
section includes matter of a character tending to incite arson, murder or
assassination."

(7)Although the Supreme Court may rule on the vagueness question in the
context of cable television regulation in Alliance for Community Media v. FCC,
56 F.3d 105 (D.C. Cir. 1995), currently pending on certiorari before the Court,
we will not defer adjudication of this issue as the constitutionality of the
term in the cable context may not be determinative of its use in cyberspace.

(8)Each intentional act of posting indecent content for display shall be
considered a separate violation of this subsection and carries with it a fine, a
prison term of up to two years, or both. 47 U.S.C. § 223(a),(d) and Conf.
Rep. at 189.

(9)As I have noted, the unique nature of the medium cannot be overemphasized
in discussing and determining the vagueness issue. This is not to suggest that
new technology should drive constitutional law. To the contrary, I remain of
the belief that our fundamental constitutional principles can accommodate any
technological achievements, even those which, presently seem to many to be in
the nature of a miracle such as the Internet.

Notes (Judge Dalzell)

(1)By Order dated March 13, 1996, we asked the parties to submit their views
on questions regarding allocation of the burdens of proof in these cases. Since
I believe that the outcome of these cases is clear regardless of the allocation
of proof between the parties, none of my conclusions in this opinion requires me
to choose between the arguments that the parties have presented to us.

(2)Although I do not believe the statue is unconstitutionally vague, I agree
with Judge Buckwalter that the Government's promise not to enforce the plain
reach of the law cannot salvage its overbreadth. Even accepting the
Government's argument that prosecution of non-obscene pornography would be a "legitimate
application" of the CDA, City of Houston v. Hill, 482 U.S. 451, 459 (1987),
it is clear that the Act would "make unlawful a substantial amount of
constitutionally protected conduct", id. As in Hill, the Government's
circular reasoning -- that the law is constitutional because prosecutors would
only apply it to those against whom it could constitutionally be applied -- must
fail. See id. at 464-67.

(3)Plaintiffs have argued that we may consider their challenge under the
standards governing both "facial" and "as-applied"
challenges. That is, they suggest that we may pass judgment on the decency of
the plaintiffs' speech, even if we are unable to conclude that the act is
facially unconstitutional. Surely this procedural confusion arises out of the
three opinions of the D.C. Circuit in National Treasury Employees Union v.
United States, 990 F.3d 1271, 1279-80 (D.C. Cir. 1993), aff'd, 115 S. Ct. 1003.

I doubt that we could undertake an as-applied inquiry, since we do not know
the exact content of plaintiffs' speech. Indeed, it is impossible to know the
exact content of some plaintiffs' speech, since plaintiffs themselves cannot
know that content. America Online, for example, cannot know what its
subscribers will spontaneously say in chat rooms or post to bulletin boards. In
any event, I need not address this issue, in the light of our disposition today.

(4)"Dial-a-porn" is a shorthand description of "sexually
oriented prerecorded telephone messages". Sable, 492 U.S. at 117-18.

(5)In turn, Pacifica's definition of indecency has its roots in the Supreme
Court's obscenity jurisprudence. Indecency includes some but not all of the
elements of obscenity. See, e.g., Alliance for Community Media, 56 F.3d at
113-14 n.4.

(6)The reach of the two provisions is not coterminous, however. As we
explain in the introduction to this Adjudication, § 223(a) reaches the
making, creation, transmission, and initiation of indecent speech. Section
223(d) arguably reaches more broadly to the "display" of indecent
speech. I conclude here only that both sections refer to the identical type of
proscribed speech.

(7)At oral argument, counsel for the Government candidly recognized that "there's
nothing quite like this statute before", and that the CDA's novelty raised
some "legislative craftsmanship problem[s]". Transcript of May 10,
1996, at 81-82. I believe that my analysis here makes sense in the light of the
legislative history and the jurisprudence on which Congress relied in enacting
the CDA. See Senate Report at 188, reprinted in 1996 U.S.C.C.A.N. at 201-02.

(8)The counterargument is that § 223(e)(5)(A), when read together with §
223(e)(6), merely confers jurisdiction on the FCC to prescribe the "reasonable,
effective, and appropriate actions" that count as defenses. Congress
employed a similar scheme for dial-a-porn. See Dial Information Servs., 938
F.2d at 1539 (citing 47 U.S.C. § 223(b)(3)); Information Providers'
Coalition, 928 F.2d at 871.

(9)The play was "critically acclaimed and long-running in Los Angeles
area theaters". Infinity Broadcasting, 3 FCC R. at 932.

(10)Analytically, it makes sense that indecent speech has public value.
After all, indecent speech is nevertheless protected speech, see, e.g., Sable,
492 U.S. at 126, and it must therefore have some public value that underlies the
need for protection. Obscenity, by contrast, has no public value, id. at 124,
and thus has no protection from proscription.

(11)Internet technology undercuts the Government's argument that the "in
context" element of §§ 223(a) and 223(d) would insulate
plaintiffs such as Critical Path from liability. See, e.g., Transcript of May
10, 1996, at 89-91. A user who clicks on a link in the Critical Path database
(see Findings 33, 77-78) might travel to a highly graphic page in a larger HTML
document. The social value of that page, in context, might be debatable, but
the use of links effectively excerpts that document by eliminating content
unrelated to the link.

(12)Moreover, because of the technology of Internet relay chat, it would
need to make this determination before it organized the chat room, since it
could not pre-screen the discussion among the participants. Thus, it would need
to predict, in advance, what the participants were likely to say. The
participants would need to make a similar determination, unaided (I expect) by
First Amendment lawyers.

(13)Testimony of April 12, 1996, at 235-36.

(14)In this section I do not imply that the FCC has jurisdiction to process
Internet complaints in the same manner as it does for broadcast. The extent of
the FCC's jurisdiction under the CDA is a sticky question not relevant here.
See Senate Report at 190-91, reprinted in 1996 U.S.C.C.A.N. at 204. Because the
administrative decisions cited above arose out of citizens' complaints to the
FCC, however, they provide a kind of surrogate insight into the kinds of speech
that citizens have charged as indecent in the past.

(15)See Finding of fact 81. See also Symposium, Emerging Media: Technology
and the First Amendment, 104 Yale L.J. 1613 (1995).

(16)A narrow holding for this new medium also will not eliminate the chill
to plaintiffs, who could well stifle the extent of their participation in this
new medium while awaiting a future iteration of the CDA. Such a holding would
also lead Congress to believe that a rewritten CDA (using, for example, a "harmful
to minors" standard, see Senate Report at 189, reprinted in 1996
U.S.C.C.A.N. at 202) would pass constitutional muster. In my view, a holding
consistent with the novel qualities of this medium provides Congress with prompt
and clear answers to the questions that the CDA asks.

(17)The history of dial-a-porn regulation both before and after Sable is
tortuous, and involves the intervention of all three branches of government. I
will not rehearse that history here, deferring instead to the other courts that
have recounted it. See, e.g., Sable, 492 U.S. at 118-23; Dial Information Serv.,
938 F.2d at 1537-40; Information Providers Coalition, 928 F.2d at 870-73.

(18)Sable is arguably not a decision about mass communication. Unlike Red
Lion, Tornillo, or Turner, the Court in Sable reached no conclusions about the
proper fit between the First Amendment and governmental regulation of the
telephone. The case also includes no discussion of the technology of the
telephone generally. The plaintiff in that case, a purveyor of dial-a-porn,
challenged the statute only with respect to that type of content. Sable, 492
U.S. at 117-18. Thus, the Court's opinion discussed only the "dial-in
services". Id. at 128. Since every telephone call at issue was, by
definition, dial-a-porn, every telephone call was, by definition, either obscene
or indecent. Id. at 132 (Scalia, J., concurring).

Here, however, plaintiffs represent forty-seven different speakers
(including educational associations and consortia) who provide content to the
Internet on a broad range of topics. The limited reach of the Sable holding
renders it inapt to the Internet communications of the plaintiffs in these
actions.

(19)I note here, too, that we have found as a fact that operation of a
computer is not as simple as turning on a television, and that the assaultive
nature of television, see Pacifica, 438 U.S. at 748-49, is quite absent in
Internet use. See Findings 87-89. The use of warnings and headings, for
example, will normally shield users from immediate entry into a sexually
explicit Web site or newsgroup message. See Finding 88. The Government may
well be right that sexually explicit content is just a few clicks of a mouse
away from the user, but there is an immense legal significance to those few
clicks.

(20)In a May 3, 1996 letter to a three-judge court in the Southern District
of New York, John C. Keeney, Acting Assistant Attorney General in the Criminal
Division of the Department of Justice, has advised that tagging would be "substantial
evidence" in support of a § 223(e)(5)(A) defense:

Under present technology, non-commercial content providers can take steps to
list their site[s] in URL registries of covered sites, register their site[s]
with the marketplace of browsers and blocking software (including listing an IP
address), place their material in a directory blocked by screening software, or
take other similarly effective affirmative steps to make their site[s] known to
the world to allow the site[s] to be blocked. Under present technology, it is
the position of the Department of Justice that, absent extraordinary
circumstances, such efforts would constitute substantial evidence that a content
provider had taken good faith, reasonable, effective, and appropriate actions
under the circumstances to restrict or prevent access by minors to the covered
material. The same would be true for tagging by content providers coupled with
evidence that the tag would be screened by the marketplace of browsers and
blocking software.

Letter of May 3, 1996 from Acting Assistant Attorney General John C. Keeney
to Hons. Denise L. Cote, Leonard B. Sand, and Jose A. Cabranes, attached to
Defendants' Motion for Leave to File Supplemental Statement. On May 8, 1996,
the Government moved to file the Kenney letter in this action, and we granted
the motion as unopposed the next day.

The letter certainly raises more questions than it answers. I wonder, for
example, whether it is consistent with the plain language of the Act simply for
content providers to "make their site[s] known to the world" and
thereby "to allow [them] to be blocked", even though this form of
notice alone would not reduce the availability of indecent content. Cf. Senate
Report at 178, 1996 U.S.C.C.A.N. at 201 (noting that § 223(d) "applies
to content providers who post indecent material for online display without
taking precautions that shield that material from minors"). It is also an
unanswered question whether the Keeney letter would eliminate any of the CDA's
chill, since the Government acknowledged that the letter would not prohibit a
United States Attorney from taking a contrary position in a particular
prosecution. See Defendants' May 9, 1996 Response to the May 8, 1996 Order of
Court. The letter also fails to mention how users who participate in chat
rooms, newsgroups, listservs, and e-mail might take advantage of §
223(e)(5)(A). Finally, it is undisputed that neither PICS nor the hypothetical
"-L18" tag are available to speakers using the World Wide Web today,
whom the Government has explicitly reserved its right to prosecute should the
CDA ultimately be found constitutional. See Stipulation and Order of February
26, 1996, quoted supra.

(21)Turner examined certain "must-carry" provisions under an
intermediate scrutiny, since those laws imposed incidental burdens on speech but
did not directly regulate content. Turner, 114 S. Ct. at 2469. The Court
remanded the case to the district court without passing on the constitutionality
of the must-carry provisions. Id. at 2472.

(22)Arguably, a valid CDA would create an incentive for overseas
pornographers not to label their speech. If we upheld the CDA, foreign
pornographers could reap the benefit of unfettered access to American audiences.
A valid CDA might also encourage American pornographers to relocate in foreign
countries or at least use anonymous remailers from foreign servers.